Markkula Center of Applied Ethics

Journalistic Ethics, Legal
Ethics, and Public Ethics: A Dialogue

"Courts and the Mass Media: The Ethical Issues," a conference sponsored by the Markkula Center for Applied Ethics and the Santa Clara University School of Law, drew 300 people to the SCU campus January 24Æ25, 1997, to hear speakers including O.J. Simpson defense team members Johnnie Cochran, Robert Shapiro, and Gerald Uelmen; law professors Laurie Levenson, Erwin Chemerinsky, and Peter Arenella; and journalists Geraldo Rivera and Rikki Klieman.

Uelmen and fellow conference organizer Thomas Shanks, S.J., executive director of the Markkula Center, talked further about these issues with Christopher Kulp, associate professor of philosophy at SCU, and Miriam Schulman, editor of the Markkula Center's Issues in Ethics for an article that appears in the publication's Spring 1997 edition. The full transcript of their discussion follows:

Issues in Ethics:
At the January conference, what panelists tended to talk about their professional ethics and how they were motivated by those, but they didn't talk as much about how we might resolve issues when the professional ethics of journalists and the professional ethics of lawyers come into conflict. When that happens, how would society's best interests be served and who would represent those interests?

Are there values to which both professions can appeal? Are professional ethics different from personal or public ethics?

Gerald Uelmen:
I think one of the problems is the extent to which there is public participation in formulating rules of professional conduct. I know the legal profession has moved in this direction, at least to the point of having public representatives on the governing board of the bar, and there has been some legislative input into formulating rules of professional conduct; for example, the gag rule that I talked about in my paper was mandated by the legislature. The legislature said to the state bar, "You will propose a rule that governs the pretrial comments of lawyers." I think that's helped, and that's one way to go at it. Then the rules of professional conduct are not put together just from the narrow perspective of lawyers but from a broader public interest.

Thomas Shanks, S.J.:
How are they enforced for lawyers? You have the codes of conduct; what kind of bite do they have?

Gerald Uelmen:
Well, the bite is a disciplinary proceeding initiated by the bar in which the consequences may be suspension or reprimand or disbarment. One problem, of course, is that the bar feels so overwhelmed with really egregious misconduct-you know, lawyers stealing their clients money or abandoning their clients-that they put a very low priority on issues like lawyers shooting off their mouths on the courthouse steps. That's just not a very high priority in terms of their hierarchy of values. From a public perspective, the hierarchy might be different. The public may say we're really concerned about the problems of publicity in high-profile cases and that should get a little higher priority from the bar.

Thomas Shanks, S.J.:
I asked Robert Drinan [S.J., professor, Georgetown Law School], "If a lawyer follows every one of those codes that are in the bible you held up [The American Bar Association Code of Conduct], would that make an ethical lawyer?" What do you think?

Gerald Uelmen:
No, I don't think it would. For example, there's no ethical mandate that a lawyer do pro bono volunteer work. You can avoid discipline by the bar, as 95 percent of lawyers do, without even thinking about what you're doing that serves the public good.

Christopher Kulp:
Journalists and lawyers are going to have profession-specific obligations, and surely it's appropriate to draw up codes of ethics that are applicable to professionals in a given profession. But by the same token, they retain a relationship to the broader community as well.

Quite understandably, when lawyers or journalists are in the professional mode, they tend to see things through that lens; but ultimately, this can lead to a narrowness of view. Of course, any professional is liable to lapse into this sort of disregard for the broader responsibilities they have to something larger than just their profession; that's very hard to avoid. But it behooves us to try to avoid falling into that trap.

I just want to add one other thing here. It seems to me that any professional ethic is properly going to preserve certain central moral tenets that are applicable to everybody-whether a physician or a lawyer or an anchor person at a TV station. It's my impression that qua professionals, people sometimes lose sight of that.

Thomas Shanks, S.J.:
Let me just throw in the media perspective. In law, although it may not be used very much, you have a disciplinary structure to enforce the code. There are a lot-seven or eight, maybe-major codes for reporters that are all self-regulating, and there's no disciplinary structure at all.

Gerald Uelmen:
I think the big difference between the press and the bar is that we are publicly licensed, and in order to keep our license we may have to meet certain standards imposed and enforced by the licensing authority. But there's no such thing as a license to be a reporter, so journalists are only answerable to their employers in terms of their conduct, and the ethical codes that have been crafted for the media are just hortatory. They really have no teeth.

Thomas Shanks, S.J.:
The Federal Communications Act of 1934? did license the television stations, and they were supposed to operate in the public interest, convenience and necessity; that was the reason under which those stations were licensed. At the time, there were a whole lot of regulations to support that, most of which went away during the Reagan administration. With newspapers, there's no public licensing, but for the television, you could actually go back to the original agreements under which these people were licensed.

For awhile, when there was a concern for local stations losing their licenses, it was usually on grounds that they didn't serve the public interest or necessity. But by and large, now, there's nothing. The press claims constitutional protections because journalists are serving the common good; society needs to have unfettered information, so we need to have the press able to pry into our personal lives and all that sort of stuff.

Gerald Uelmen:
That's our defense as lawyers too. We serve the common good. You know, after the Simpson trial, George Will wrote a column saying that Johnnie Cochran was a good lawyer but a bad citizen. The implication was that by making an argument that created racial divisiveness in the country, he was ill-serving the common good although he may have been serving the narrow interests of his client.

I just don't see it that way. I think it's an oxymoron to say that if you're a good lawyer, you're a bad citizen. By definition, being a good lawyer means you are serving the goals of our adversary system, which require that the lawyer serve the interests of the client. Good lawyers make decisions about what arguments they are going to make based on the best interest of the client not on the public interest. You are not a lawyer serving the public; you are serving the client. We have ascertained that the public interest is best served by an adversary system in which there are lawyers on two sides, both of whom are representing a client and presenting that client's case in the best possible way.

Thomas Shanks, S.J.:
What do you say to the ethicist, the person, who says, "Okay, that's where the dilemma is: You've got a profession that's set up to protect the interests of clients, and most ethical systems are set up not just for the interests of clients, but for a greater good"? What it leads to ultimately, some people argue, is the moral neutering of lawyers because they're constantly coming up against a clash between the individual and the community.

Gerald Uelmen:
Yes, well, this is where I fault lawyers. Within an adversary setting, we are serving the interests of the client. But too many lawyers I know never stop serving the interests of the client, even when it comes to a debate about the ethical standards that should govern lawyers. You have the plaintiffs' lawyers on one side and the insurer's lawyers on the other side, and they will really be promoting the interest of the insurance agency or the interest of plaintiffs rather than what rule or what prescription will best serve the common good.

Christopher Kulp:
To pick up on the comment of George Will, and not to talk about Johnnie Cochran per se-just lawyer X-one might urge that it's actually not oxymoronic to argue that a person could be a good lawyer and a poor citizen. On the one hand, you could hold that if you are taking part in a justifiable practice, you are being a good citizen insofar as you act in accordance with this justifiable practice to the best of your ability. That's the kind of defense a lawyer might make-that you are defending a client very vigorously. And if it should result in public unrest, well, that's an unfortunate but undesired consequence; and it occurs in the pursuit of a legitimate practice.

What do you say, then, to the person who argues, "Well, yes, but a person doesn't check his or her moral agenthood at the door when he or she becomes a lawyer? There is a legitimate sphere for saying, 'Even though I could do this in accordance with accepted standards of practice, I don't think I should.'" Does that argument make sense or do you think thereÕs some flaw in it?

Gerald Uelmen:
The flaw I see is that the moral resolution of the problem becomes simply a withdrawal of the lawyer. Ultimately, I think respecting the autonomy of the client requires the lawyer to say, "You have a legal right to have this position asserted, but IÕm not going to assert it for you. Therefore, I canÕt serve as your attorney."

Thomas Shanks, S.J.:
The questions you're asking, Chris, are the right questions. If we focus it on law and media, the media people have the same obligations. I remember the first time I started looking into journalistic ethics, I asked, "Is there something about the profession of journalism that somehow sets the journalist apart from the moral responsibilities that every human being has just as a function of being a human being?" There's a similar question for lawyers. I think the answer is no because what might be justifiable practice might fly absolutely in the face of what any rational human being would say is good for the community.

Gerald Uelmen:
There's not much public understanding of that, though. To me, it's not a coincidence that lawyers and journalists are among the professional groups in our society that are most derided, despised, and hated because their role and their role-driven ethics are largely misunderstood. I don't think people appreciate that this is the role lawyers and journalists are assigned within our society. We're not all given this mandate to go out and do good for the public.

Thomas Shanks, S.J.:
I guess what we need to question now is, What role are they assigned by the public? That's why I like what you said about who formulates the rules of professional conduct. I think, at least for journalists, the public has said very little about what professional conduct should be. I keep coming back to the First Amendment. As far as I can tell from looking at it, the First Amendment certainly protects most of what the Inquirer [ck sp] or the Star do, but I can't imagine that the framers of the Constitution had in mind that it would lead to the absence of any sort of personal moral code for reporters.

Gerald Uelmen:
Let me take a position that is actually antithetical to what I was preaching in the paper I presented at the conference, which was that shield laws are too broad, that they're part of the problem, that the reason we have all of this leakage problem is that there's no responsibility. Shield laws are a good example of a profession going to the public and saying, "We need this protection" and getting a responsive legislative process that endorses their position. In that respect they are speaking from a very strong position: This is the public good as defined by the public, not as defined by the press.

Thomas Shanks, S.J.:
Some philosophers suggest there's an unwritten social contract between professions and society that goes something like this: You can do your work. We will protect what you need in order to do your work on the understanding that you won't do positive harm to society at large. I think shield laws are a good example of this contract. Under these laws, journalists cannot be forced to reveal confidential sources. Society says, "We're going to protect you so that you can do what you need to do as a media person or else our system will come grinding to a halt."

But it still seems to me that when we grant that, we're still assuming there's a moral agent on the other side-a reporter, who's going to make responsible judgments, who will not ultimately do positive harm.

Christopher Kulp:
Some years ago, there was an ethics and media discussion on PBS with a number of well-known, distinguished journalists. A question was put to them, roughly to the effect: Look, if you were covering a battle in which the United States was fighting some other outfit and you had information that could tip off the U.S. troops that they were going to be attacked, would you let the U.S. troops know? Some of the journalists, after wrestling with this, finally said no.

Now, from a nonjournalist's point of view, it looks to me as if these people are taking their work too seriously. They have obligations not just to the profession-which are, among other things, to present information and to be an uninvolved chronicler-but they also have obligations to their society, a society that does much to make their profession possible.

Freedom of the press and the importance of the press being unbeholden to any group seem to me fairly skimpy grounds for saying that you shouldn't let a platoon of U.S. soldiers know they're going to get blown up. We likely have a case here where people are operating excessively within the parameters of their profession and not thinking seriously enough about the common good.

Thomas Shanks, S.J.:
That's right.

Gerald Uelmen:
Well, every profession can be regulated by the state to promote those interests that the state regards as paramount. For example, the lawyers duty of confidentiality-of keeping the secrets of a client-has been tempered in recent years to impose obligations in many states to warn third persons who are endangered by a client, even though you know that because of a client confidence. So, I think the potential is there to temper the parameters within which a professional works with some sort of broader societal objectives imposed through legislation.

Christopher Kulp:
Could I just add that in this PBS program, many of the military people who were party to this discussion were just contemptuous of the perspective being advocated by the journalists and were saying, in effect, "When you're pinned down in some difficult situation, don't expect me to come there and risk my life and my men's lives to pull your fanny out of the fire."

Also, I want to ask Jerry a question. I thought that the response you gave to my question [about acceptable practices] was quite good. But in practical terms, how workable is it? Let's say you're in your case for a month and something like this develops. That could really be a major setback for the client. What's to be done there?

Gerald Uelmen:
When students say to me, "Once I concluded that the client I was representing was guilty, I would have real difficulty being a vigorous advocate on their behalf and attacking the prosecution's case, making the prosecution witnesses look like liars," I have to say to them, "You probably shouldn't do defense work because once you take on the responsibility of defending someone, you owe it to the client to deliver the vigorous advocacy that he's entitled to." In effect you're holding yourself out as able to numb whatever restraints you might feel or uncomfortableness you might feel and overcome that and still be a vigorous advocate.

To some extent, your ability to change your mind and say, "I'm going to get out of this" may be constrained by a court saying, "We're not going to let you out because it would delay these proceedings and be unjust to the other side if they have to wait around now for another lawyer to come in and get up to speed on this case. So you're just going to have to bite the bullet and see it through despite whatever compunctions you might have."

Thomas Shanks, S.J.:
But how do you answer the question, "Aren't you forcing lawyers to be unethical, to do something that they think is wrong?"

Gerald Uelmen:
No, because we define the lawyerÕs role as not just serving the client but serving the system. When I say, "I'm going to give you the vigorous representation you are entitled to even though I find you morally reprehensible,Ó IÕm not just serving my client, IÕm serving a system that values that kind of representation. This is the kind of adversary system we want.

Thomas Shanks, S.J.:
What makes this so complicated is that's the same thing the media person is doing. They're both serving a system. As you said earlier, society has decided that this is the role that these institutions should be playing in our society.

Issues in Ethics:
Maybe you could talk a little bit about the classic ways that journalists and lawyers come into conflict. It seems to me we should distinguish between lawyers and journalists behaving unethically in their own terms and lawyers and journalists behaving ethically but having values that are in conflict. A classic one is defending the right to due process of a client vs. the public's right to know about a case.

Gerald Uelmen:
There's a strong parallel between journalists and lawyers in terms of the obligation to protect confidences. Journalists will go to jail before they will breach a promise to a source that they will keep the sourceÕs identity confidential because they believe, once it's perceived their promise won't be kept, the source of news that ultimately serves the public good will just dry up.

Lawyers see it from the same perspective. The promise of confidentiality serves the need for the lawyer to have a relationship of candor with the client. You can tell me anything, and it won't get beyond me. And you can have confidence that when you tell me something, IÕm not going to use it against you. Once we breach that promise, clients will be reluctant to repose their secrets in their lawyers, and we believe the public good is best served if clients do have confidence that their secrets are safe.

Christopher Kulp:
This may operate more straightforwardly in the case of the legal profession than it does in journalism, but it seems that when you enter into a contract to take part in legal proceedings, you operate under the auspices of the state. There are, then, a lot of constraints imposed on you. There may be room to move and wiggle and object here and there; but the constraints are fairly substantial nevertheless. Perhaps the way that the common good may best be served is when people-lawyers, in this case, but we may say the same for others, e.g. journalists-actually move to change certain facets of the system.

Gerald Uelmen:
That's the nub. When lawyers address questions of how we should govern ourselves as a society, they've got to get beyond representing the narrow interests of the client. That's where I have difficulty with a lot of lawyers: When they step beyond the representation of a client into the domain of what the standard should be, they continue to represent the client. That is, lawyers take on their client's identity across the board, not just in the role of being an advocate for the client but even in the role of participating in public debate and resolving public controversy.

Thomas Shanks, S.J.:
The problem for the journalist is probably the opposite, in a sense. What we have in the traditional formulation is the journalist as the protector of the common good, which is understood as the maximum amount of information for the maximum number of people. If journalists are going to err, they err on the side of trampling individual rights.

The courts, over and over again, have basically said that's fine. So, for example, it becomes very hard to show that someone has been defamed if they're a public person; individual privacy rights often are trumped by the public's right to know. If the lawyer is focusing on the client, the journalist, at least theoretically, focuses on the public to the exclusion of the individual.

Gerald Uelmen:
That's an interesting contrast between the legal profession and journalism. My advocacy is always tempered by an advocate on the other side. The public, in the context of a criminal prosecution, is represented by a prosecutor who's operating under the same ethical constraints that I'm operating under. They are presenting their case in the best posture possible, and they're going to attack my case and expose the weaknesses in my case. So we're going to go at it.

Christopher Kulp:
With a referee right on the spot there to make calls.

Gerald Uelmen:
But the journalist isn't operating in an adversary system. The journalist doesn't have that external restraint of somebody on the other side saying, "You're going too far," or "You're looking in places you shouldn't look."

Thomas Shanks, S.J.:
That's right. The other piece of the context that I think comes into this conversation now, especially for the journalist, is the increasing role of large business organizations. Many reporters now answer to multinational communication businesses whose main concern is often the bottom line, to the exclusion, in some cases, of real concern for the public good.

Then, because of technology, we have a huge increase in media outlets-with the Internet, cable stations, and all the rest. When there is a national story now, we have an unbelievable amount of competition for what's new, what's fast.

Gerald Uelmen:
To me, that pressure is the biggest problem in terms of relying on voluntary restraints. Those who do accept voluntary restraints find themselves at a competitive disadvantage because another news group out there will take advantage of their restraint.

Christopher Kulp:
[Former FCC Chairman Newton] Minow raised the point at the conference that we should not only be concerned with whether we have the right to do X; we should be concerned with whether X is right. There are a number of writers who have recently made the following point: Within a highly complex, pluralistic society like ours, with so many people holding different views, there are well-known problems in having people come to agreement in moral matters. Really, they go on to say, the legal structure is in the best position to reach determinations about what we should and shouldn't do.

So here's my question: Within a pluralistic society like ours, can we expect journalists-coming from these different perspectives-to be constrained by anything other than what the law prohibits them from doing? In that case, morality, if it doesn't just drop out, is certainly not front and center.

Gerald Uelmen:
But the law isn't emanating from the legal profession. The law is emanating from your legislature, from the elected representatives, most of whom are not lawyers, and who are hopefully representing the common good.

Thomas Shanks, S.J.:
So you have the legal profession, the journalistic profession, and you have the law as an institution that deals with both of those. But I think your point is: There's something broader than the law, which is public morality or civic virtue or common good. I don't think that the law can encompass or deal with all of the situations that are causing us problems. Maybe eventually the law will do that, but when you look at what we have legislated and what we consider to be all of the way that we should be with one another in a society, they're not the same.

Gerald Uelmen:
They can't be by definition. But the law should keep striving to catch up, and it should always be informed by this ideal of the common good.

Thomas Shanks, S.J.:
That's where the problem is, I think. The problem is, we don't engage in public discourse at the broadest level. The discourse that we have at that level generally is the discourse of law, so we're not very good at that.

Christopher Kulp:
We talk more these days in terms of constitutionality or in terms of what the courts have had to say: weÕre continually throwing social problems to the courts. There are obviously a variety of reasons for this phenomenon, but central among them, I think, is that we have a very pluralistic society that finds agreement increasingly difficult. Immigrant groups are more outspoken; there's gender recognition, etc. Well, says society, at least we can go to the courts; they're going to give us a determination. Then we don't have to debate what this religious text has to say or chose carefully between competing cultural traditions-we'll just go to the courts. I'm sorry to see that.

Gerald Uelmen:
I share your reaction to that process because the courts are the least democratic institution we have. Deferring all these questions to the courts is not a healthy process of reaching a consensus on the common good and what we need to govern ourselves.

Thomas Shanks, S.J.:
I keep wondering how low we're going to go before we finally begin to figure out ways to do public discourse in addition to the law.

Gerald Uelmen:
If we have created a system [of discourse] that feeds into a downward spiral where the public is more interested in entertainment and titillation than substance, then something is basically wrong. Our system should be elevating the process. One problem with public discourse is that the public values all discourse whether it's informed or not. You don't have to look any further than the talk shows to see that.

Christopher Kulp:
The journalists have an obligation here. The public good may be served by entertainment, but some things should not be seen that way. Trials don't qualify as entertainment.

Gerald Uelmen:
But a lot of criticism of journalists and lawyers should be directed at the public. Basically, you get the media you deserve.

Thomas Shanks, S.J.:
Look at the conflict in the broadcast media over whether to break away from the coverage of the O.J. Simpson civil trial verdict to air the presidentÕs State of the Union message. Eventually, the public has to say, "Who are we, and would we really rather choose O.J. over the State of the Union? What does that say about us?Ó

Christopher Kulp:
You saw, I take it, the headlines in the San Jose Mercury News the next day. The headlines for the Simpson civil trial verdict were far more prominent than those for President ClintonÕs State of the Union address. I thought that was deplorable.

Thomas Shanks, S.J.:
That's an example of something that will probably never be covered by the law-what to do in a situation like that.

Gerald Uelmen:
It's just the classic example of the bottom line. The media sees it not from the standpoint from what should be the public interest in these two events, but what is. And they say, "We're serving what is," without recognizing any obligation, perhaps, to elevate it.

Christopher Kulp:
Is there a deep tension between the profit motive and people behaving in morally exemplary ways or showing a strong, lively regard for the common good?

Thomas Shanks, S.J.:
Yes, there is clearly a deep tension. But the tension, I think, is lessened because of something that has always been there for journalists: this thing about getting the news first and getting it out first. I don't know that it's directly connected with the bottom line; it's become a value by itself apart from what it causes, which is that people will buy your newspaper or whatever. It is so ingrained into the mind of the journalist to be out there first that it's not necessarily the result of the profit motive.

Christopher Kulp:
When you consider the attention to the O.J. Simpson case, it seems we are engaged in a celebration of people's baser instincts. When you have reporters being rewarded for things that really don't serve the common good, there's need for reevaluation by society, falling especially on the offending profession.

Thomas Shanks, S.J.:
The editor is really supposed to be the gatekeeper who pays attention to the public good. Rob Elder [editor of the San Jose Mercury News] says journalists and editors have to develop an ethical reflex so that without even thinking consciously about it, the editor or journalist makes a judgment that does try to balance individual interests with the common good and, at the same time, doesn't remove the journalist from the ethical obligations of every human being. The codes are supposed to be a way to get at teaching people that reflex, but the whole culture operates a different way, and the public doesn't seem to care.

Christopher Kulp:
Can we at least agree that the ethical codes of the legal profession and the media ought to preserve the minimal generic requirements of any justifiable practice?

We expect this even from military people who have a "license to kill," so to speak; in fact, they can be court-martialed if they refuse to fight under certain circumstances. But they can't do just anything. Maybe they could win the battle by going in and mowing down a couple of elementary schools or firebombing a few hospitals, but they're going to get in big trouble, and quite rightly, if they do that.

Any legitimate practice is going to have to preserve certain minimal requirements that are prescribed by quite a broad range of normative ethical views. If you fall outside of that, then something is inherently the matter with that practice; the practice itself needs to be modified.

Issues in Ethics:
But if lawyers followed their code and journalists followed their code, they would still come into conflict because in many instances you have rights in conflict. It really has to do with how, as a professional, you're educated to see an order of these rights. In other words, is the First Amendment going to take precedence for you over the Fourth Amendment.

It's a little bit easy to jump on the egregious coverage of the Simpson case or egregious misbehavior on the part of lawyers. But at some more fundamental level, it seems to me that even the most ethical lawyers and journalists can be in opposition. Perhaps they even operate as a kind of checks-and-balances system where they check each others excesses. If media had not, for instance, given as much attention to the O.J. Simpson case, then our understanding-and I think Johnnie Cochran made this argument-of how African Americans perceive the police in this country would be different. So at the same time as the coverage was excessive, it protected another valuable social good, which was that we now know something that we didn't know before.

I mean you have to protect Larry Flynt [cksp], as reprehensible as you find him, so that when somebody else needs to use these rights in a way that does serve the public good, they're there. I really think we can't leave it by saying we could have a code where everybody agreed on the basic values.

Christopher Kulp:
In fact you may not be able to arrive at codes like that-codes where everyone agrees. But I think that the kind of fundamental tenets propounded by most broadly accepted, competing, major ethical views tend to be fairly similar. For example, if in either of these two professions, you treat people with disregard, if truth telling is of no consequence in your code, if your code has no concern for the manipulation and exploitation of people, if your code sanctions cruelty-I submit that these are the kind of basic things prohibited by Kantian ethics; by utilitarian ethics, at least under most circumstances; and by natural law ethics.

If we can't get agreement at that level, we're really in trouble. A lot of people think that morality is relative. People often focus on minor disagreements between ethical systems; but autonomy, constraints on the treatment of others, prohibitions against cruelty-these are moral absolutes or, at least, virtual absolutes.

Thomas Shanks, S.J.:
We might look at professional codes as a minimum standard, but when the code bumps up against human moral absolutes, it's time to reconsider.