ACP News & Notes

By Mike Hiestand

Law and ethics have a curious relationship. The law tells you what you can do. Ethics, on the other hand, is concerned mainly with what you should do. Fortunately, they usually work hand in hand. Indeed, one of the things I quickly discovered in law school is that you can pretty much guess what the law will be about 80 percent of the time — without ever picking up a book. If both common sense and the little person on your shoulder tell you that Path A is the one you should follow, chances are good that courts have come to the same conclusion.

What that means, of course, is that a lawyer invests three years of her life and spends gobs of money going to law school to figure out what to do in just 20 percent of her work.

Much of that 20 percent can easily be blamed on lawmakers and lobbyists who too often push legislation without regard to either common sense or ethics: they’re looking out for themselves. For the balance of cases, however, it’s usually more complicated.

Sometimes that’s because neither common sense nor ethics — or even greed — provide an easy answer. In fact, sometimes you find that the law tells you can or must take Path A, but your personal or professional ethics is saying Path B, or perhaps C, is the one you should stick to.

Because of the importance Americans have traditionally placed on a free press and the strong legal protections of the First Amendment, journalists probably confront more of these legal/ethical questions than most. The following are some of the more common.

(Note that in the discussion that follows, we’ll assume that censorship of the material by school officials is not at issue, only whether it can or should be published. Administrative censorship of otherwise lawful content is, of course, a big, separate topic for another day.)

Publishing minor names/photos. This is unquestionably the issue that most frequently raises a legal/ethics question for the reporters we speak with at the Student Press Law Center. As with most of the issues that follow, the legal answer to this question is actually pretty straightforward. More than 30 years ago, the Supreme Court ruled that the First Amendment protects the right of journalists to publish the names/photos of minors in newsworthy stories as long as the information is “lawfully obtained” and truthfully reported. That is the same standard that applies to adults. So, in covering a bona fide news story involving a minor, your energy and attention should focus not on the law — where the answer is a clear “yes you can print the name” — but on whether or not publishing a minor’s name or image in a particular case is editorially appropriate and ethically sound. Many news organizations — following their own written or unwritten editorial policies — do not, for example, identify minors involved in less serious criminal conduct. The rationale is generally the belief that young people, simply because they are young and naturally lack experience or judgment, make mistakes and should not be stigmatized for life for something stupid they did in their youth. That makes sense. But it is not a decision compelled by law and it is not necessarily one that your news organization must accept as its standard operating procedure. There are big news stories — such as a school shooting or a brazen crime committed by the child of a prominent public figure — where many journalists would argue that publishing the name of the high school-aged suspect is editorially required and ethically justified. Though it may make your job more difficult, it is up to you and your staff — not a court — to figure out where the line should be drawn in your newsroom. (The Poynter Institute’s Al Tompkins has a useful checklist of factors to consider when making this decision. In fact, the Poynter Institute, a school and resource for journalists, is a great first-stop when confronted with any ethical question.)

Publishing victim names. As with the publication of minor names, courts have also generally upheld the legal right of news media to accurately publish victim names/photos in newsworthy stories. While some states passed laws prohibiting the identification of sexual assault victims, these laws have been routinely struck down as unconstitutional when challenged. So again, it is up to individual news organizations to determine when or if to publish such information. While many still do not publish victim names, particularly victims of sexual assault, some newsroom policies allow for the accuser to be identified where a case is dismissed or where the accused is found not guilty.

Publishing accident/crime/war scene photos or interviews. Reporters and photographers are regularly called upon to cover tragedy. Events such as a drowning or a deadly car wreck are news. So are murders, rapes, serious beatings and the like. So is war. In covering tragic, but newsworthy events, journalists often end up with images or stories that are hard to look at and hear in the newsroom let alone publish or broadcast for their audience. Still, in general, the law protects news media if they decide it is something their readers should know. Victims and the victims’ loved ones may be upset by the decision, but it is a tough decision that generally must be made by editors, not judges and juries.

Publishing controversial ads. Whether it’s an “issue ad” that promotes white supremacy or a risqué ad for an “adult toy” store or strip club, the First Amendment protects the publication of commercial speech as long as it concerns a lawful activity and is not misleading (and courts have traditionally allowed a fair share of leeway on this latter requirement). The ideas espoused by white supremacists or holocaust deniers, for example, are generally protected (the First Amendment protects one’s right to say stupid things) and sex toys are legal — at least for a college-aged audience. At the same time, as long as it is the student staff making the final decision, student media are under no obligation to provide an advertiser (or any outside contributor for that matter) space on their pages, website or broadcast. It is — lucky you — your call.

Publishing nudity. The law prohibits the publication of obscenity. But obscenity — contrary to what many believe — is not a descriptive term (as in “those photos of near-naked cheerleaders are obscene!”) It is a legal classification. And to be classified as legally obscene, material generally has to be very, very explicit. In fact, when speaking of material aimed at an adult audience (18 years old and above), obscenity is so explicit and so beyond what student media do that in my nearly two decades working with them, I’ve still only seen one example that maybe…perhaps… even came close (and no, I’m not telling.) Mere nudity — photos of campus streakers, spring break wet T-shirt contests and the like — does not constitute obscenity and the decision about whether to publish such material is an editorial call. (It’s also probably a financial call due to the number of readers and advertisers you might offend. But that, too, is separate issue.)

As a media law lawyer, I think I probably have the easy job. I get to tell journalists who call with a legal question either, “yes” you can legally publish such information or “no” the law will probably not be on your side if you do. Once my job ends, however, the really hard work actually begins.

Mike Hiestand is an attorney, based in the far, upper left corner of the “Lower 48,” and works as a legal consultant to the Student Press Law Center.

Filed under: it's the law