Ethical Issues in Communication Professions

New Agendas in Communication

Minette Drumwright, Minette Drumwright

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135139438
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

Dynamic, rapid, and radical changes are transforming the communication professions, provoking major implications for ethics. Traditional boundaries blur as media converge; relentless competitive pressures cause some forms of communication to atrophy and permit others to explode; and technological advances occur daily. In this volume, a new generation of scholars take a fresh look at the manner in which ethical issues manifest themselves in their areas of research and suggest new agendas for future research.

This book addresses a wide range of questions from a variety of communication professions.Contributors tackle suchissues as how to define a journalist in an era when anyone can disseminate information to a global audience; how to use "advergames, " crowdsourcing, and facial recognition technology in advertising responsibly; and how to respond ethically in situations of public crisis communication, among many others. This volume will be critical reading for scholars and professionals in media, communication, and digital arts, as well as philosophy, government, public policy, business, and law.

Chapter 1

Freedom of the Press and Journalism Ethics in the Internet Age

Jason M. Shepard

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After the website WikiLeaks disclosed thousands of classified United States military documents leaked by a soldier, Republican Vice Presidential candidate Sarah Palin called the site a terrorist organization, while a member of the Norwegian Parliament nominated it for a Nobel Peace Prize. In illuminating the threat of the Internet to the social-responsibility principles of journalism ethics in the U.S., the document disclosure torpedoed a bill pending in the U.S. Senate giving journalists a long-sought statutory journalist's privilege to protect confidential sources. But wasn't the website providing citizens with truthful information about public affairs and serving as a watchdog of government—precisely what we want from journalistic organizations? The dissemination of truth is a core value in American free-press theory and journalism ethics theory, but WikiLeaks and other recent examples underscore how the Internet age requires rethinking of traditional theories of freedom of the press and journalism ethics.

The Internet has revolutionized traditional media ecology, diminishing the news media's gatekeeping role and the role of journalists in mediating news. This technological shift has also reduced institutional barriers for individuals who want to disseminate information to the public. Matt Drudge's online scoop of President Bill Clinton's sexual dalliance with a White House intern in 1998 catapulted bloggers to the journalistic fore, and some bloggers quickly established their journalistic bona fides to openly compete with large, commercial media companies. Today, there is no longer the question of whether bloggers are journalists, but rather a question of what makes a blogger a journalist. Indeed, one wonders whether journalism itself is a profession and discipline that can sustain itself in the new media landscape. Professor Paul Starr in The Creation of the Media (2004) and Professor Elliot King in Free for All: The Internet's Transformation of Journalism (2010) demonstrate that the Internet is not the first technology to revolutionize the journalism profession. However, in We're All Journalists Now (2007), attorney Scott Gant argues that the Internet does indeed present a paradigm shift for the concept of journalism as a profession, arguing that journalism is better viewed as a process and product that can be done by anyone with a computer and modem.

This chapter explores the impact of the Internet age on the legal and ethical frameworks of traditional journalism. Can journalism, defined by ethical and legal frameworks, continue to be a distinct discourse in the Internet age? To what degree does adherence to traditional journalism ethical practices afford online communicators with legal protections as journalists? How should the law define who is a journalist in today's changing media landscape? Given the technological revolution, does it even make any sense to use ethical concepts to provide legal distinctions for journalism, and if so, how should traditional journalism's ethical principles evolve in light of new practices and legal problems raised by new technologies? After exploring these questions and concluding that journalism should remain a central component of normative free-press theory, I offer several suggestions on how future research can expand and apply free-press theory and journalism ethics to journalistic practices in the Internet age.

Journalism as a Preferred Press Freedom

As Supreme Court Justice Potter Stewart viewed it in 1974, the press clause of the First Amendment in the U.S. Constitution is a uniquely American structural provision that provides journalistic institutions—“the daily newspapers and other established news media”—with explicit constitutional rights in order to guarantee an independent “fourth estate” of government to provide “organized, expert scrutiny of government” (Stewart, 1975). In a seminal scholarly work, Professor Vince Blasi articulated a “checking value” theory of the First Amendment that positioned journalists as an archetype of First Amendment freedom fighters, professional experts whose ethical purpose was to advance democracy and improve government by serving as truth seekers acting in the public interest (Blasi, 1977). Professor David A. Anderson, in his treatise on the original intent of the press clause, concluded that this fourth estate model “seems so thoroughly supported by the legislative history that one may wonder why it has not been universally accepted” (Anderson, 1983). More recently, C. Edwin Baker has argued that the Supreme Court's free-press doctrine embraces this institutional, instrumental approach (Baker, 2007).

The idealistic, utilitarian vision of journalism as a constitutionally protected and imperative institution that Justice Stewart presented in 1974 is one normative model of modern free-press theory. But the theory is outdated when one considers the transformative effects of the Internet on journalism. The status and role of journalism has changed dramatically in recent years, with potentially transformative effects on free-press theory. For free-press and journalism-ethics scholars, a profound question is whether the Stewart-Blasi-Anderson view of journalism as a special discourse—constitutionally protected and democratically important—is even worth rescuing in the Internet age. As Professor Randall D. Eliason has argued, laws specifically protecting journalism “may soon be considered a relic of a simpler era—a relic that now is neither workable or necessary” given the “rapid technological changes in both the nature and quantity of information regularly made available to the public” (Eliason, 2006).

This argument can be troubling to free-press and journalism-ethics scholars because it challenges theoretical frameworks and modern legal and ethical doctrines. Free-press theory as it has developed in American legal jurisprudence has emphasized normative claims about the role of journalism in a democratic society to justify special rights and responsibilities. Broadly speaking, the principle of freedom of the press forbids the government from censoring, punishing, or licensing the press except in extraordinary circumstances and under strict scrutiny of the judiciary, based on the justification that a free press is necessary for citizens to exercise their sovereignty over government. Indeed, one cannot read the U.S. Supreme Court's major press cases of the twentieth century without appreciating the Court's full embrace of the essential tenets of the free-press principle. This began in 1931 when, in Near v. Minnesota, the Court struck down a Minnesota law that allowed newspapers to be banned as a public nuisance. Five years later, in striking down a Louisiana law requiring the nine largest newspapers in the state to pay a 2% licensing tax, the Supreme Court wrote in Grosjean v. American Press Co. (1936), “A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves” (p. 250). The Supreme Court expanded its commitment to the free-press principle in ensuing decades. In the landmark 1964 decision New York Times v. Sullivan, in which the Court overturned a $500,000 libel judgment against the New York Times, the Court wrote that “debate on public issues should be uninhibited, robust and wide open” (p. 270). Professor Lee Bollinger described the decision as the “fullest, richest articulation of the central image of freedom of the press” (Bollinger, 1991, p. 2), which he characterized as having a distrust of government, treating the citizen as sovereign, emphasizing the importance of public debate, and viewing the press as the public's representative.

The special role of journalists in the free-press principle was the centerpiece of the Court's ruling in New York Times v. U.S (1971). On a vote of 6-3, the Court rejected President Richard Nixon's attempt to halt publication of the so-called Pentagon Papers—leaked, classified documents about the government's involvement in the Vietnam War. In separate opinions, several justices articulated visions of the institutional press and the journalism profession as noble crusaders of truth on behalf of the public. In an almost poetic opinion, Justice Hugo Black wrote

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. … In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

(p. 717)

Justice Black referred to the press as singular, referring clearly to the institution the public came to know as journalistic news organizations. Other justices in the case did the same. Justice Douglas cited Near in arguing that a “vigilant and courageous press” is needed to confront the “malfeasance and corruption of government officials in a vast bureaucracy” (p. 723). And Justice Stewart wrote that especially in regard to national defense and international affairs, “it is perhaps here that a press that is alert, aware and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people” (p. 728).

Despite this strong rhetoric of journalism as a special discourse that serves as the basis for free-press theory, a paradox exists in First Amendment jurisprudence. As Professor Anderson argued in the Texas Law Review, “as a matter of positive law, the Press Clause actually plays a minor role in protecting the freedom of the press. Most of the freedoms of the press the press receives from the First Amendment are no different from the freedom everyone enjoys under the Speech Clause” (Anderson, 2002, p. 429). As early as 1938, in Lovell v. City of Griffin, the Court emphasized an individual rather than institutional view of press freedom. “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets … The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion” (p. 453). Indeed, while the Court has embraced the rhetoric of press freedom protecting journalistic institutions most fully, “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others,” Justice Burger wrote in First National Bank v. Bellotti in 1978 (p. 798). Burger made his view clear:

The very task of including some entities within the “institutional press” while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country.

(p. 801)

This legal approach views the press clause as generally impotent other than to emphasize an individual's right to disseminate information in print as well as verbally, analogous to legal protections under the speech clause of the First Amendment. On the other hand, Justice Stewart, in his 1974 speech “Or of the Press,” said conclusively that the press clause “extends protection to an institution.” He went on:

It is tempting to suggest that freedom of the press means only that newspaper publishers are guaranteed freedom of expression. They are guaranteed that freedom to be sure, but so are we all, because of the Free Speech Clause. If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy … By including both guarantees in the First Amendment, the Founders quite clearly recognized the distinction between the two.

(Stewart, 1975, p. 633)

Despite the seeming embrace of the individual rights model over the institutional model, the articulation of the free-press principle in the Supreme Court's jurisprudence often emphasizes the special role of journalism in a democratic system of government, and it has arisen in various contexts in which the press has sought to use the free-press principle both as a shield and as a sword. A free press serves two primary purposes, both of which can be viewed as utilitarian or instrumental: to inform citizens about public affairs to advance democracy and to check for abuses among those in power. The public-information theory of the First Amendment articulated by Alexander Meiklejohn (1948) and the checking-value theory of the First Amendment articulated by Vince Blasi (1977) both support the institutional view of journalism that has developed in modern Supreme Court jurisprudence. Journalists have been far more successful at using the First Amendment as a shield from government censorship and civil liability. The major foundations of press law doctrine establish judicial hostility toward prior restraints and higher burdens of liability based on First Amendment concerns. Thus far, the press has been less successful at convincing the Supreme Court that the free-press principle grants journalists broad special rights, such as an evidentiary privilege or access rights to jails and records. The press has had greater success in the lower courts and in state legislatures in securing special legal protections.

To be sure, the free-press principle is ripe for criticism in several respects. First, the principle generally prioritizes press freedom over other social interests, such as individuals' reputations and privacy, except in egregious cases. The press generally cannot be compelled to present multiple viewpoints, it can use sensationalism to distort, it can emphasize entertainment over public affairs, it can play to personal biases and prejudices, and it can fuel ignorance and pettiness. In addition to the market-based failings of journalism to live up to its ideals and the tensions between the institutional versus individual approach to the press clause, the Internet has raised profound questions about the premises and implications of the traditional free-press principle.

The Internet Revolution's Effects on Journalism

The development of the free-press principle into Supreme Court jurisprudence began in the 1930s and peaked in the 1970s. The legal doctrines are the creation of a media environment dominated by print journalism. However, this journalism-centric model of the free-press principle is ripe for alteration and rethinking because of the Internet revolution's effects on traditional journalism.

The journalism profession is in trouble. Between 2001 and 2010, American newspapers shed 25% of their newsroom employees. The title of Robert McChesney and Victor Pickard's 2011 book, Will the Last Reporter Please Turn Out the Lights, reflects the existential crisis for journalism. Due to changes in the production, dissemination, and consumption of news, traditional journalists no longer serve as citizens' primary gatekeepers and mediators of news. The business model for newspapers, the traditional core of the journalism profession, is being gutted by the irreversible loss of advertisers and declining circulation. Filling the void of traditional journalism is a cacophony of information disseminators and services. The Internet has created new models of information production, dissemination, and consumption that eliminate the monopoly newspapers had in gathering, sifting, and packaging news. The technologies associated with the new media—aggregation, search, hyperlinks, digital video and audio, smart phones, live blogs, forums and commenting, social media—mean that news dissemination occurs increasingly in an open information network. The Internet has also allowed for instant access to information, greater personalization, increased globalization, and low costs of entry to publishing. The technological changes have also erased the economic barriers for new journalism entities, and both organizations and individuals have used the new technologies to launch journalistic endeavors wholly on the web.

The flip side of the “journalism is dead” coin is that the Internet allows anyone with access to a computer and modem to publish information to a potentially worldwide audience. Histories of the blogosphere often point to Matt Drudge's exposé of the Clinton-Lewinsky affair as the birth of the blogger-as-journalist. Drudge was working as a gift-shop employee living in a $600-a-month basement apartment in Santa Monica, California, when he received a tip on January 17, 1998, that Newsweek magazine held a story alleging Clinton had an affair with a White House intern. The conventional wisdom suggested Drudge did little more than splash the tip onto his we...