Covering Conflict and Controversy: Measuring Balance, Fairness, Defamation

Abstract

Most stories lack balance and in 28% of instances other side of controversy was not contacted. The relationship between formal journalism codes of ethics and liability in libel and other legal actions has been a subject of growing-and usually alarmed-concern recently. The concern is a natural result of the U.S. Supreme Court's command in 1974 in Gertz v. Robert Welch, Inc.1 that plaintiffs in libel suits must prove fault to win against a media defendant. In most states, negligence has become the fault for private figures; actual malice was established as the fault requirement for public figures by the Court itself.2 Proof of fault requires proof of a departure from standards of behavior which either exist or should exist as a matter of duty. In tort actions where a media defendant is involved, the requirement calls for evidence that a reporter or other media staffer departed from some of behavior, referred to in tort law as the standard of care.3 Two opposing positions have developed. One argues that application of journalism codes of ethics as standards is inherently undesirable, either because it confuses the issues of moral duty and legal duty,4 or because it attempts to formalize statements of principle and aspiration.5 The other approach openly advocates application of journalism codes of ethics in libel. Since libel inquires into the behavior of journalists, and since professional standards represented in codes are evidence of standards within the news business, codes provide a partial common ground for assessing media performance.6 The weakness in advocating code application is that codes are inherently philosophical. Only a handful of provisions in the various codes of journalism organizations are specific enough to prove or disprove.7 The weakness of those who oppose code application is that no better source for generally-agreed-upon standards exists. Codes of ethics remain the only available evidence of standards other than potential statements from expert witnesses or from the mouths of defendants themselves. Without some point of reference, the fact question for a jury will essentially be ad hoc in every libel case. That is actually the situation in most states using the ordinary person negligence standard: juries simply substitute their judgment for that of the reporters and editors, resulting in an alarmingly high rate of favorable verdicts for plaintiffs.8 Something better is needed. One of the authors has argued that the application of a journalistic malpractice in libel actions will benefit news media defendants in most cases. Just as likely, it will ensure defeat in others.9 A journalism malpractice assumes that violation of professional standards may result in defeat in libel suits. But libel has many elements a plaintiff must prove. The very first is that an assertion has a defamatory meaning. No matter how negligent a story, lack of defamatory meaning precludes a successful libel suit. This study is a first step in determining the relationship between defamation and adherence or non-adherence to professional norms. Defamatory meaning became the focus of this study because it is primary in libel. It is not only the first building block of libel-it is also the first question typically addressed by a court, resulting in dismissal if defamatory meaning cannot reasonably be found.10 The Supreme Court has made defamatory meaning relevant by stressing that there is an analytic difference if a statement makes substantial danger to reputation apparent.11 It is reasonable to assume assertions harmful to reputation place a reporters on notice to be more careful; the courts agree. The assertions made in scholarly writings on both ethics and libel are overwhelmingly normative, and therefore untested. So long as that is true, advocating application of professional standards remains mere opinion, however much it is shared by courts. …