Commentary: The Press Should Try Taking A Little Of Its Own Medicine

The media's zeal for higher standards doesn't always extend to the Fourth Estate

During this long season of corporate scandal, journalists haven't been shy about telling other people how to behave. We have documented the wrongdoing of accountants, analysts, bankers, CEOs, and lawyers on the news pages while opining on editorial pages that they should all face tighter regulation.

This enthusiasm for higher professional standards, however, does not necessarily extend to ourselves. Certain of the importance of our mission, devoted to press freedom, most reporters and editors recoil at the notion of restrictions on what we do. Thanks to the First Amendment, journalists have long enjoyed an extraordinary degree of legal immunity in this country. Even priests, these days, have a harder time in court than do reporters.

PATCHWORK QUILT. Because of this constitutional protection, the main check on the conduct of journalists is self-enforced ethical standards. A patchwork of unwritten customs, formal codes, and gut instincts, these rules are imprecise, contradictory, and far less elaborate than the ethical regulations governing lawyers, doctors, and other professions. If you ask five different publications to define a basic concept such as "off the record," you'll get at least three different answers.

To a much greater extent than in other fields, it is all too easy for news organizations to disregard these rules when they are in pursuit of a hot news story. Just look at the Tyco (TYC ) fiasco. For decades, there has been an unwritten custom barring reporters from identifying jurors until after deliberations are complete. It makes sense. In order to render a fair verdict, jurors need to be protected, as much as possible, from any external influence.

On Mar. 26, The Wall Street Journal decided to carve out an exception to this longstanding tradition. After Tyco case juror Ruth Jordan allegedly flashed an "O.K." sign to the defendants (which she now denies), the newspaper published an online article revealing her name. This decision by a highly respected publication was inevitably followed by others, dramatically increasing the likelihood that the six-month case would end in a mistrial. Essentially, the Journal chose to jeopardize the prosecution of Tyco ex-CEO L. Dennis Kozlowski and ex-CFO Mark H. Swartz because it believed the public had such an urgent interest in knowing Jordan's name that the information could not be withheld until the case concluded a few days later, at which time it would have been fair game.

Paul E. Steiger, the managing editor of The Wall Street Journal, defends the paper's decision to print Jordan's name by arguing that it was highly newsworthy. When she flashed the "O.K." sign, he says, "it put the trial into disarray." Disputing the notion that the Journal had in any way changed the outcome of the case, he argues that a mistrial or hung jury was inevitable in any event. "This is a superextraordinary case of aberrant a very high-profile case," says Steiger.

No doubt about it -- but that still does not excuse what the Journal did. There are two main reasons the Constitution protects the right of reporters to cover trials: to guarantee that the proceedings are fair to the parties and to ensure public faith in the process. Unless one of these bedrock values was genuinely threatened by Ruth Jordan, there's no valid argument that her name was newsworthy. "The press should avoid putting its fingers in the judicial process unless something seriously unsavory is happening," says Burt Neuborne, director of the Brennan Center for Justice at NYU School of Law.

In this case, Jordan's alleged sign of approval to the Tyco team could be interpreted as an indication of bias in favor of the defense -- clearly a newsworthy event. But it's worth noting that the victim of this apparent bias, the prosecutors from the Manhattan District Attorney's office, did not view the "O.K." signal as grounds for a mistrial. So it's hard to argue that a serious injustice occurred, requiring a departure from normal editorial policies. And even if one had, what did it really add to broadcast her name, rather than simply refer to her as Juror No. 4?

Of course, the public also had a stake in the trial. Nobody wants court to be a circus. So when the clowns started riding bicycles in the Tyco case, readers deserved to know. But again, the problem could have been described without releasing the juror's name. And let's face it: The hand signal did not raise serious questions about the integrity of the courts as a whole. That's partly why The New York Times, The Washington Post, and every big TV outlet did not deem Ruth Jordan's name sufficiently important to require disclosure.

The Tyco case is hardly an isolated example. In a weak business climate, the pressure to score big news hits can be intense. There is strong evidence that last year NBC (GE ) offered to kill an investigative news program about Michael Jackson if he agreed to give the network's entertainment division exclusive rights to an interview that would have made a bigger splash. If true, this would be a serious ethical breach directly related to the news division's core mission. NBC denies that such a trade was ever offered but still has not adequately explained why one of its entertainment executives wrote a letter to the Jackson camp offering to preempt the investigative story. Surely, if another company in a trust-based business faced such allegations, many in the media would be demanding outside investigations and board action.

Will there ever be any serious inquiry into the Jackson incident? Don't bet on it. The truth is that while media organizations are pretty good at dealing with isolated rogues such as ex-New York Times reporter Jayson Blair, they are far from introspective about institutional ethical violations. And since newspapers and TV stations are, for good reason, largely beyond the reach of regulators, prosecutors, and judges, there isn't much incentive to fix the situation. "It is hypocritical that our job as journalists is to hold the powerful accountable, yet we don't do it to any meaningful degree in our own industry," says Robert M. Steele, the Nelson Poynter Scholar for Journalism Values at the Poynter Institute.

This isn't to say that there should be a Federal Journalism Agency. Nor that there should be a trade association looking over reporters' shoulders -- one that would play a role comparable to that of state bar associations. News organizations need freedom and frothiness. But it is time for journalists to start taking some of their own medicine. Otherwise our cherished legal protections may start weakening.

By Mike France

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