The Enforcers: Journalists need to referee themselves
by Kenneth Anderson, attorney

Journalists are very good at exercising freedom but sometimes not so good at exercising responsibility. Who is to call them to account?

Responsible journalists, that's who. We need reporters and editors to adopt their own system and enforce it, as doctors and lawyers do. It is time for journalists to blow the whistle on each other.

It wasn't long ago that doctors and lawyers refused to testify against each other in lawsuits. Now they not only do that, they also submit to peer review through boards of professional responsibility to protect the public from malpractice. What about journalistic malpractice?

Although lawyers (I am one) and reporters often find themselves antagonists, they have a lot in common. They both look upon what they do as a "right" they hold, but the rights they claim actually belong to those they serve.

The judiciary's practices and protections are based entirely upon the rights of individuals to be properly and well represented when they become involved in the judicial process.

When it comes to speech, First Amendment rights belong to all citizens: they are essential rights that must be protected if democracy is to survive.

Lawyers rely upon the power of the judicial system to control access to the privileges of lawyers. Reporters, who enjoy unusual privilege under the U.S. Constitution - freedom of speech and freedom of the press - have no such system.

A citizen's reliance upon a lawyer's privilege or a reporter's freedom can expose him or her to great danger. The courts have imposed serious penalties on persons pretending to be lawyers. How about persons whose lack of skill as reporters makes them unworthy pretenders in an essential profession?

In the late 1960s the legal profession, encouraged by the courts, sought to impose standards of conduct upon lawyers. In Minnesota a Board of Professional Responsibility was set up. Two thirds of the board are lawyers, one third are lay persons. Most members are appointed by the Supreme Court, but some are appointed by the bar association as representatives of the profession.

Thus, in seeking redress against a lawyer, the public is no longer limited to a confrontation with the lawyer or the lawyer's employer. Since 1971 people have been filing complaints about lawyers' behavior, and the board has been dealing with them. Operating funds come from annual dues lawyers must pay if they want to continue practicing law here.

A professional staff investigates complaints. If the investigation supports the complainant, a panel of three board members (two lawyers and one lay person) hears the complaint. The panel has subpoena powers, calls witnesses and hears both sides, makes a decision and may impose sanctions ranging from a letter of reprimand through a proceeding in the Minnesota Supreme Court that may result in suspension or disbarment.

Among early members of the lawyers' board of professional responsibility were the editors of the St. Paul Pioneer Press and the Mankato Free Press. A conversation between lawyers and journalists developed relating to cameras in the courtroom and the ethics of reporting. Although there was talk of duplicating the lawyers' board with one for reporters, nothing came of it. Among ideas that fell short:

Some thought the Newspaper Guild should sponsor the activity, but the idea failed because there was no way to duplicate the way the judiciary dealt with lawyers. (Besides, companies that hired reporters did not want any other body assuming a role in judging their reporter's performance.)

The News Council could have been designed to act as an investigative or enforcement body, but it is the Council's very lack of authority that induces news organizations to make themselves answerable to complaints.

Newspaper ombudsmen, such as the reader representative at the Star Tribune, work for the same company that employs the reporters and editors. Ombudsmen serve as sentinels, but they are not disciplinarians.

Clearly, the courts should not assume a role in deciding the rules of reporters' professional behavior.

What's a better idea? Reporters themselves should devise those rules. Reporter panels should explore failure to abide by those rules. Reporters should impose penalties for improper behavior, perhaps with the participation of nonreporters, as in the case of the lawyers' board.

Should the News Council sponsor such a departure? Would professional reporters help? Would they contribute money to the project? Would they submit themselves to scrutiny when challenged by a body having real disciplinary power?

The Board of Professional Responsibility has greatly increased public respect for lawyers. It has given citizens a way to express their displeasure. It has imposed some restraint upon lawyers' behavior. Wouldn't that model be valuable to responsible reporters if they, too, had a tribunal of peers to turn to?

Lawyers and reporters must always remember that the right to practice law and the right to a free press are not their private possessions. Those freedoms are not a divine right, they are a sacred trust.

A peer tribunal to hand down swift and sure justice to reporters? Sounds like something a lawyer would dream up. Mr. Anderson should have witnessed reporters debating at an ethics seminar at my paper. We wrestled for an hour with real and hypothetical cases, but failed to reach any consensus except: "Nothing is black and white."

The peer-review proposal is a nice bit of idealism, but it doesn't square with the reality of journalism as I know it. In 25 years as a reporter, I've seen no quacks among my peers and few incompetents. Most of those were weeded out quickly by newspaper management. These days the job market is flooded with eager applicants; there's no reason to keep a bad reporter on staff.

I have, however, seen some big egos, immature or inexperienced people, good reporters who made bad judgment calls, and good investigative journalism that unavoidably hurt someone. Do all these call for peer intervention and discipline? If so, the tribunal would be extremely busy.

Legal remedies already exist in cases of serious journalistic misconduct, and the Minnesota News Council, for all its lack of enforcement power, has served as a strong moral authority. Frankly, I'd rather see reporters put their energy into strengthening this valuable institution and giving it a higher profile than divert resources into a disciplinary scheme with so many problems.

What problems? Where do I start?

Reporters aren't lawyers, and a system tailored to lawyers won't transplant well into the news business.

Reporters aren't licensed and can't be "disbarred." To do so would create a slew of First Amendment problems. And if a panel couldn't boot them out of the profession, would its authority be any greater than that of a news council now?

There are other important differences. Lawyers have to go to law school, pass a bar exam, follow court rules and accept a legal duty to represent their clients. Reporting has no such clear-cut structure on which to base standards.

Reporters don't represent clients, so to whom should they be held accountable if a dispute arises? Readers? Sources? The People? The Truth? The employer?

Finally, compared with lawyers, reporters are a skimpy source of dues to support peer review.

The backlog of cases before the disciplinary panel would soon rival that of the courts.

Anyone upset with a reporter's work, justifiably or not, could haul him before his peers. We hear often enough from people angry because we didn't call it the way they saw it. If the stakes went up, I think most of us would find ourselves in the dock sooner or later.

Yes, our peers might dismiss the case, but meanwhile we'd spend hours or days assembling a defense. The hassle might make a prudent reporter think twice before venturing again into controversial news territory.

Unions would object.

Both daily newspapers are unionized, and their contracts spell out the causes for which a reporter can be fired or disciplined. The Newspaper Guild, for which I serve as a unit officer in St. Paul, would view third-party discipline as an illegal infringement upon our contract, executive secretary Bernie Lunzer says.

Reporters would take the rap even if others contributed to the problem.

Editors should share blame for a bad story - especially when they're responsible for a questionable assignment or a "get the story at all costs" atmosphere. More routinely, editors help shape stories and control the time and space the reporter has to do the job. What's more, reporters increasingly are producing stories in teams with fellow reporters, editors, and sometimes library researchers, graphics people and others.

Reporters' peers are also their competitors. Even if panelists swear an oath of neutrality, some reporters might suspect an ulterior motive for any discipline meted out.

So is there any way to hold reporters accountable? Yes - the job of discipline belongs to our employers. People who think a reporter has done them wrong should complain to her boss. Editors do pay attention to patterns of complaints. I've seen problem reporters reassigned or encouraged to leave.

Meanwhile, media organizations should make it easier for citizens to complain by designating ombudsmen or "public editors." And the Minnesota News Council needs to mobilize peer pressure among media executives to police themselves and support the Council's work.

In the end, maybe there's one good thing to be said about peer review. Journalists do need to sit down and talk about improving the profession. Maybe the idea of peer discipline is just wild enough to inspire us to come up with something better.