William Mitchell Law Review Volume 8 | Issue 1 Article 1 1982 Do We Want a Responsible Press?: A Call for the Creation of Self-regulatory Mechanisms Robert J. Sheran Barbara S. Isaacman Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Sheran, Robert J. and Isaacman, Barbara S. (1982) "Do We Want a Responsible Press?: A Call for the Creation of Self-regulatory Mechanisms," William Mitchell Law Review: Vol. 8: Iss. 1, Article 1. Available at: http://open.mitchellhamline.edu/wmlr/vol8/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Sheran and Isaacman: Do We Want a Responsible Press?: A Call for the Creation of Self- DO WE WANT A RESPONSIBLE PRESS?: A CALL FOR THE CREATION OF SELF-REGULATORY MECHANISMS ROBERT J. SHERANt & BARBARA S. ISAACMANt The frst amendment guarantee of afree press has never been more impor- tant to American society. The guarantee offleedom of expression now extends beyond the printedpage to the airwaves of radio and television broadcasting. The media in this electronicage wield unprecedentedpower to infuence public opinion. For the most part the media have admirably fl4filled their role as society's eyes and ears, acting as watchdog over gov- ernmental deeds and misdeeds. In recent years, however, abuses of this first amendment privilege have causedmany to view the media as an arro- gant, self-righteous institution, insensitive to the rights and interests of others. In this Article Mr. Sheran and Ms. Isaacman examine the growth of media power in modern society and the increasing criticism of irresponsiblemedia practices. After reviewing the limitedsuccess ofjudi- cial, legislative, and executive eftbrts to instill a sense of responsibility in the media, the authors conclude that media self-regulation in the form of rigorous self-discipline is the only practicableand constitutionally accept- able means of curbing media excesses. The authors callfora detailedcode of media ethics and offer guidancefor its formulation by raising specif pertinent questions that such a code must resolve if the media are to regain credibility and respect. I. INTRODUCTION ....................................... 2 II. THE ROLE OF THE MEDIA IN MODERN AMERICAN SOCIETY .............................................. 8 III. THE LEGAL FRAMEWORK OF A "FREE PRESS"......... 31 A. Freedom of the Press ............................... 31 B. The Limits of InstitutionalRegulation of the Media .... 42 t Member, Minnesota Bar. St. Thomas College, B.A., 1936; University of Minne- sota, LL.B., 1939. Mr. Sheran was formerly Chief Justice of the Minnesota Supreme Court and is presently a partner at the law firm of Lindquist and Vennum, Minneapolis. * Member, Minnesota Bar. Brandeis University, B.A, 1964; University of Wiscon- sin, M.A., 1967; University of Minnesota, J.D., 1977. Ms. Isaacman was a law clerk to Chief Justice Sheran and presently practices in Minneapolis with the National Labor Re- lations Board. Published by Mitchell Hamline Open Access, 1982 1 William Mitchell Law Review, Vol. 8, Iss. 1 [1982], Art. 1 WILLIAM MITCHELL LAW REVIEW [Vol. 8 1. DirectJudiial Regulation ....................... 43 2. Legislative Regulation ........................... 55 3. Executive Regulation ............................ 77 C Conclusion ......................................... 85 IV. THE SELF-REGULATION OF THE MEDIA .............. 87 A. The Constitution and a Responsible Press ............. 87 B. Existing Forms of Media Self-Regulation ............. 89 C Self-Regulatoy Mechanismsfor Ensuring Media Responsbiity ...................................... 96 1. Media Canons of Ethics ......................... 96 2. Joint Media-Legal Committees to Establish Guidelines ..................................... 102 3. Media Ombudsmen .............................. 104 1. Press Councils .................................. 107 D. Conclusion ......................................... 115 V. MEDIA SELF-REGULATION THROUGH A DETAILED ETHICAL CODE ....................................... 117 A. Introduction.: Professionals and Their Codes of Ethics .. 117 B. The Rationalefor an Unenforceable Ethical Code ...... 124 C The Substance of a Media Code of Ethics ............. 127 1. Media Violation of the Law to Obtain News ...... 128 2. Coverage of Criminal Trials ..................... 131 3. Publication of Private Facts ...................... 133 4. Procedures to Govern Investigative Reporting ....... 135 5 Proceduresfor Ensuring Accuracy ................. 137 6 Proceduresfor Ensuring Public Access to the Media. 138 7 Policies Governing Relationships with Confidential Sources ........................................ 138 V I. CONCLUSION .......................................... 140 I. INTRODUCTION Early in 1980 the press orchestrated a symbolic media event by convening what it entitled a "First Amendment Congress." The Congress was organized by Sigma Delta Chi, the Society of Profes- sional Journalists, and sponsored by twelve news organizations representing the bulk of the nation's major press groups.' Its stated goal was to enhance public awareness of the importance of a 1. For a general description of the Congress and excerpts from the major speakers, see McCoy, Fist Amendment Congress, QUILL, Mar. 1980, at 23. This article deals only with the first meeting held in Philadelphia in January 1980. A second three-day follow-up conference was held in Williamsburg, Virginia, in March 1980. http://open.mitchellhamline.edu/wmlr/vol8/iss1/1 2 Sheran and Isaacman: Do We Want a Responsible Press?: A Call for the Creation of Self- 19821 DO WE WANT .4 RESPONSIBLE PRESS-' free press in a free society. 2 Thus, it is not surprising that the cities chosen for this Congress, which was attended by close to three hundred people, were Philadelphia and Williamsburg-sites of great significance in the history of the United States and of the Bill of Rights. The First Amendment Congress was merely one of a number of conferences held during the last several years3 which have at- tempted to improve the media's relationship not only with the public but also with the judiciary, an institution charged with the task of ensuring that the public interest is being properly served. For a number of reasons 4 not understood by the media, which are still congratulating themselves for their significant role in exposing the Watergate scandal, 5 their image has suffered dramatically in 6 the eyes of the public and the courts in recent years. What are the causes of the media's loss of popularity and what concrete steps can be taken to reverse this trend, consistent with 7 the first amendment's protection of freedom of speech and press? We argue in this Article that freedom of the press 8 -in the sense of the media's right to publish or broadcast-is presently secure and 2. Id 3. Other recent conferences include the First Amendment Survival Seminar held in March 1979, the March 1975 Conference sponsored by the Washington Post and the Ford Foundation, see Simons & Califano, Preface to THE MEDIA AND THE LAW, infra, note 99 at vii, and a 1980 California Bar Association Conference held at UCLA, see 55 CAL. ST. B.J. 1 (1980). The goals of all these meetings are to start dialogues between media and legal profes- sionals so that each may begin to understand the problems faced by the other. 4. See infra notes 78-101 and accompanying text. 5. Typical is the following statement: [Hiad the full panoply of the Burger Court's press decisions been in play, it is quite possible that the Watergate scandal might not have been uncovered. For example, the whole thing might have been cut off at the pass by closing the original bail hearing to the press. That way, reporters Bob Woodward and Carl Bernstein could hardly have noticed that high-priced lawyers were representing "third-rate burglars." Zion, High Court vs. the Press, N.Y. Times, Nov. 18, 1979, § 6 (Magazine), at 76, 145, col. 1. 6. Some commentators believe that these are related. Because they now have low prestige in the eyes of the people, they can be mistreated by the courts. McCoy, supra note 1, at 26; Oakes, Dwindling Faith in the Press, N.Y. Times, May 24, 1978, at AL3, col. 2, repr;ntedbn PRACTICING LAW INSTITUTE, COMMUNICATIONS LAw 1978, at 169-70. 7. The relevant portion of the first amendment provides, "Congress shall make no law ...abridging the freedom of speech, or of the press .... " U.S. CONST. amend. I. The Minnesota Constitution is even more explicit. "The liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right." MINN. CONST. art. I, § 3. 8. For a discussion of exactly what comprises the "press" or the "media" as used in this article, see infta notes 140-43 and accompanying text. Published by Mitchell Hamline Open Access, 1982 3 WilliamWILLIAM Mitchell Law MITCHELL Review, Vol. LAW 8, Iss. REVIEW1 [1982], Art. 1 [Vol. 8 has always been recognized and protected by the Supreme Court.9 In order for the media to perform their historically recognized and constitutionally required function,' 0 however, they must be not only free but responsible in wielding the considerable power that they