Applying professional ethical standards and FTC regulations, develop and post one approximately 700-word response to the Fa

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Picture This: The Ethics of Photo and Video Journalism 221

CASE IX-C Faking Photos: Is It Ever Justified? JAMES VAN METER Freelance Photographer, Bellingham, Washington

Chris Jones, a reporter with a large, metropolitan daily newspaper, is told by a source that a computer software corporation is considering his city as a plant site. Jones calls to confirm the tip, and the corporation’s public relations representative reads him the following statement:

Our corporation is interested in purchasing the two-block area between Third and Maple Streets on Washington Avenue. The corporation believes the site would be to its advantage, with easy access from the interstate and the airport and adequate parking space. The plant would produce software material and offer jobs to trained applicants. We are preparing to make a more than substantial offer to the landowner, Joe Sullivan. The corporation hopes to begin production on the plant three months from now, in March.

Jones notes in his story that the proposed site, commonly known as skid row, houses several run-down hotels, bars, and a homeless shelter.

One week later, Jones talks to Sullivan and the corporate representative again. He learns an offer was made to purchase the land, and although Sullivan is eager to accept, he will wait three days to give his response.

Jones’s city editor makes a photo assignment, asking for shots of the homeless people who live in the two blocks. The city editor tells veteran photographer Steve Stone he needs strong, emotional pictures to run with a story about how the homeless shelter cannot afford to move to another location. The city editor also wants the pho- tographs to run before Sullivan responds to the corporation’s offer.

Stone spends an entire day walking up and down Washington Avenue, trying to get close enough to the people sleeping and eating on the streets. Yet they either cover their faces, walk away, or plead with him not to take their pictures.

During the morning of the second day, Stone manages to take some photographs, but after he develops them he discovers that his images did not capture the pain he felt when seeing firsthand how these people struggle to survive.

Under deadline pressure, Stone calls some of his friends and asks them to pose for him as homeless people. He takes his friends, dressed in torn clothes with black greasepaint smeared on their faces, into an alley near, but not on, skid row. Stone takes some created photographs and turns them into his editor minutes before deadline.

The city editor is so impressed with Stone’s work that he decides to run one of the photographs on the front page the next day, with photo essays on two inside pages.

The day the photographs are printed, both the newspaper and the computer soft- ware corporation are flooded with phone calls protesting the plant site. Later that day, the corporate executives hold a press conference, saying they believe it would be best to look into other plant locations in the city.

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222 Chapter IX

Photo by James Van Meter. Used by permission.

Is it likely that such deception would work? Examine closely the photo of the man sleeping in the doorway of the church building that accompanies this case. He is a college student who volunteered to pose for the photographer. He is neither poor nor homeless.

Micro Issues:

1. Should Stone have told his editor that he was having problems getting the right photographs before he set up the shots?

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Picture This: The Ethics of Photo and Video Journalism 223

2. If you were Stone, would you have gone ahead and taken pictures of the homeless people despite their protests?

3. After letting the editors see the photographs, should Stone have told them how he took the photographs? Justify your answer.

4. What is the editor’s obligation in framing the assignment?

Mid-range Issues:

1. Because the photographs were an obvious factor in the corporation’s decision to find another location for the plant, did the end justify the means?

2. Do you think the photographer allowed his personal feelings about the issue of the homeless to interfere with his professional judgment?

3. Does the fact that the photos closely mirrored reality make a difference in whether the deception was ethically justified?

4. What do you see as the difference between asking a friend to help you fake the photo and directing a cooperative homeless person to pose for you? Is one any more truthful than the other?

5. What is the distinction between the faked photo and a print journalist who writes about a composite character?

Macro Issues:

1. Does a photographer create a pseudo-event just by showing up with his camera?

2. Should a news photographer voice his personal opinion through his photographs? Explain your answer.

3. In this case, the photographer recreated a likely news scenario—a homeless man lying in a church entry. In 1992, NBC’s Dateline recreated a fiery truck collision on camera by rigging the truck with incendiary devices before it was rammed by another vehicle. It is a fact that some homeless people sleep in doorways and some trucks explode on impact. Is there a difference in NBC’s efforts to ensure good video of a crash and this photographer’s efforts to ensure good photos of the homeless? If so, what are the differences? Are both equally culpable activities?

I Baselines for Ethical Advocacy

in the "Marketplace of Ideas"

Kathy Fitzpatrick

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"[Public relations professionals] serve the public interest by serving as responsible advocates for those we represent. "

"We prov ide a voice in the marketplace of ideas, facts, and view­ points to aid informed public debate. "

"Protecting and advancing the free flow of accurate and truthful information is essential to serving the public interest and contributing to informed decision making in a democratic society ."

Public Relations Society of America Member Code of Ethics 2000

These core concepts of advocacy in the Public Relations Society of America's (PRSA) Code of Ethics reflect democratic ideals grounded

in First Amendment legal theory. The "marketplace of ideas" concept was introduced in law by U.S. Supreme Court Justice Oliver Wendell Holmes in his dissent to a 1918 case in which the U.S. Supreme Court ruled that a prohibition on criticism of American symbols and ideals did not violate the

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2 Ethics in Public Relations

free speech provision of the First Amendment. Holmes's argument that the "ultimate good" was better reached by "the free trade in ideas" resonated and, for almost a century, has been the dominant philosophy of freedom of expression law in the United States.1 The concepts of "protecting and advanc­ ing the free flow of accurate and truthful information," and "informed decision making" have long, too, been recognized as democratic princi­ ples important in both lawmaking and judicial decision making in the United States.

It may seem odd that legal principles form the basis of the PRSA code since most people believe the law falls short of providing acceptable princi ­ ples on which to base ethical conduct. Indeed, ethics scholars and educators (including the author of this chapter), as well as professional ethics advisors, routinely counsel students, organizational leaders, and others to look beyond laws and regulations for aids to ethical decision making. 2 Law is about what people must do, while ethics is about what people should do, they advise. Ethics begins where the law ends. Law is about compliance with set rules and procedures, while ethics involves more discretionary decision making. Legal violations can send perpetrators to the jailhouse and/or the poorhouse, while ethical violations typically result in slapped hands and (sometimes) feelings of remorse. For these and other reasons, law is not an

)- appropriate guide for determining parameters of ethical behavior. Such advice is technically valid. Yet, there is a fine line between law and

ethics. Societal norms inform the laws and regulations by which democratic societies function. Certainly, moral principles are inherent in American jurisprudence. And, as the PRSA code illustrates, the reverse is also true: legal principles inform ethics. In many respects, legal standards define minimal expectations for ethical performance. As Don Welch observed in Law and Morality, "legal obligations are essentially subsets of moral ques­ tions … the nature of law makes a perceived legal obligation a very power ­ ful ingredient in the mix that we consider as we decide upon a responsible course of action." 3

Thus, there is much to be gained by exploring the application of legal principles to questions of ethics. In examining the legal concept of responsi ­ bility, for example, Peter Cane pointed out,

Because law is underwritten by the coercive power of the state, courts cannot leave disputes about responsibility (for instance) unresolved …. Morality can afford to be vague and indeterminate to an extent that law cannot. It is for this reason that law can make a contribution to thinking and judgement about responsibility outside the law as well as within it.4

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Fitzpatrick 3

By studying the symbiotic relationship between law and ethics, Cane argued, "we may appeal to the law as providing a pointer to sound thinking in the moral sphere." 5

Just as the law provides a mechanism for resolving complex questions concerning rights and freedoms in courts, it provides a model for manag­ ing the careful balancing of competing values and interests required in the practice of public relations. This chapter examines the core concepts of the "marketplace of ideas" in an effort to identify legal principles that might be useful in botq better understanding and defining the parameters of ethical advocacy in public relations. Following a brief introduction to marketp lace theory, the chapter reviews how marketplace concepts are applied in the legal regulation of political and commercial advocacy in the United States. The work identifies four marketplace principles that have shaped First Amendment jurisprudence and that have particular applica­ tion for the ethical practice of public relations: access, process, truth, and disclosure. The chapter concludes with a look at the convergence of legal and ethical standards for regulating communication and the importance of responsible advocacy in sustaining First Amendment protection for public relations expression.

In addition to increasing understanding of the philosophical under­ pinnings of political and commercial speech regulation in the United States, this discussion of marketplace theory also provides insight into the primary concept relied on by public relations scholars and professionals to justify public relations' social role. As public relations scholar Scott Cutlip stated,

The social justification for public relations in a free society is to · ethically and effectively plead the cause of a client or organization in the free-wheeling forum of public debate. It is a basic democratic right that every idea, individ­ ual, and institution shall have a full and fair hearing in the public forum-and that their merit ultimately must be determined by their ability to be accepted in the marketplace. 6

Rhetorical scholar Robert Heath made a similar argument, noting that public relations is essential to the free exchange of, and fair competition among, ideas in society.7

If, as the PRSA Code of Ethics suggests, the "marketplace of ideas" is to also provide the philosophical foundation for the development of profes­ sional ethics standards in public relations, then an examination of how marketplace theory is applied in law should be instructive in establishing ethical baselines for public relations advocacy.

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4 Ethics in Public Relations

The Marketplace of Ideas and the First Amendment

The concept of a marketplace of ideas in democratic societies governed by the people reflects a deep and sustained belief that self-government is made possible by properly informed citizens who engage in informed decision

, making. The public interest is best served when the voices of diverse special interests are heard. Marketplace theory rests on the premise that "truth" will emerge from robust public debate and be determined by the people who evaluate competing ideas and messages. The works of English poet John Milton, who introduced the marketplace concept in Areopagitica in 1644, and British philosopher John Stuart Mill, who two centuries later wrote the influential essay On Liberty, provided the framework for the familiar words later institutionalized in American jurisprudence by Justice Holmes: "the best test of truth is the power of the thought to get itself accepted in the competitjon of the market." 8

Marketplace theory is predicated, first, on the existence of an objective "truth" that will emerge from a' cacophony of voices promoting various interests; second, on a marketplace in which all citizens have the right-and perhaps the means-to be both heard and informed; and, third, on the ratio­ nal ability of people to discern "truth." Notwithstanding considerable debate regarding the logic of such assumptions,9 marketplace theory has endured as the most "deeply entrenched [metaphor] in the language of First Amendment jurisprudence" and the philosophical model for resolving free speech cases. 10

In fact, one recent study that evaluated the use of the marketplace metaphor in U.S. Supreme Court decisions found that its use rose dramatically in the 1970s and "continues to increase."ll

Regulating Political Advocacy

In resolving First Amendment cases in which government restrictions on speech are challenged, the Supreme Court has consistently ruled that although the protection for free speech is not absolute, ideological, or political, speech that makes a "direct contribution to the interchange of ideas" 12

••• "occu­ pies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." 13 The fundamental purpose of the First Amendment, according to the Court, is "to preserve an uninhibited market­ place of ideas in which truth will ultimately prevail." 14

Toward this end, in addition to safeguarding the people's right to speak, the Supreme Court has also recognized the people's right to hear by empha­ sizing the listener's right to receive information that is indispensable to decision making in a democracy. In 1965, Justice William Brennan observed,

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Fitzpatrick 5

"The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them . It would be a barren marketplace of ideas that had only sellers and no buyers." 15 The Court later said that because the "people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments," they are entitled to receive information needed to "evaluate the arguments to which they are being subjected." 16

In so ruling, the Court has recognized that both individuals and organi­ zations enjoy First Amendment protection to participate in public discussion and debate on matters of public interest and concern. Thus, corporate polit ­ ical speech is not subjected to greater regulation simply because of the commercial nature of the enterprise. In a 1978 case in which the government argued that those with more resources could be restrained in order to enhance the political voice of those with fewer resources, the Court said,

The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment which was designed to secure the widest possible dissemina­ tion of information from diverse and antagonistic sources and to assure unfet­ tered exchange of ideas for the bringing about of political and societal changes

)- desired by the people. 17

As Justice Powell observed, First Amendment protection is determined by "the inherent worth of the speech in terms of its capacity for informing the public." 18

At the same time, the Court has recognized the need to protect the sanc­ tity of the marketplace in situations where speech "threatened imminently to undermine democratic processes. " 19 Thus, the Court has allowed certain speech restrictions intended to safeguard the efficient functioning of govern­ ment. While laws restricting particular viewpoints are presumptively uncon­ stitutional, narrowly drawn regulations designed to prevent undue influences in the marketplace and/or unfair advantage to certain speakers have been upheld. The most significant exceptions have occurred in cases involving corporate speech related to election campaigns and financial matters, where the Court has recognized a need to ensure just elections and protect fair investment markets. For example, in a case involving corporate participation in political activities, the Court found that corporations should not be allowed to gain an unfair advantage in the political marketplace because of their ability .to amass substantial wealth in the economic marketplace. 20

In determining the constitutionality of a particular regulation on indi­ vidual or corporate speech, the Supreme Court applies a balancing approach, weighing the right to free speech against a government's interest in protecting

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6 Ethics in Public Relations

other important rights or in preventing particular harms. The process recognizes both the inherent worth of avoiding the "chilling" of speech cre­ ated by burdensome regulation and the need to protect the sanctity of the marketplace. In order for a restriction to be upheld, the government must demonstrate a compelling interest that is directly advanced by the regulation. For example, such an interest might be the need to prevent corruption, or the appearance of corruption, in political processes.21

The perceived value of free speech in a democratic society is reflected in the Supreme Court's recognition that even false political speech "must be protected if the freedoms of expression are to have the 'breathing space' needed to survive." 22 Although the Court has found that "false statements of fact are particularly valueless" because "they interfere with the truth-seeking function of the marketplace of ideas," 23 the Court has consistently empha­ sized the need for some tolerance of falsehoods to prevent the chilling effect of strict liability for false statements. Because "some erroneous statement is inevitable in free debate," 24 abuses of speech freedoms are dealt with after the fact , for example, in suits based on daims of defamatio!). or other viola­ tions of private rights. 25

In addressing potential harms caused by certain types of speech, the Court has demonstrated a clear preference for disclosure requirements over prior

f—– restraints on the core content of communication. For example, in a case in which the Court struck down a prohibition on promotional advertising by electric utilities, Justice Powell wrote in the majority opinion: "If the + marketplace of ideas is to remain free and open, governments must not be allowed to choose 'which issues are worth discussing or debating."' 26

Disclosure requirements are less burdensome means for addressing poten­ tially deceptive communication practices, according to the Court, because they "do not prevent anyone from speaking." 27

This brief review of the regulation of political advocacy in the United States demonstrates that public relations professionals have substantial free­ dom to communicate on behalf of clients and employers in the political mar­ ketplace. The Court has provided both the access required and the "breathing space" needed for organizations-and their public relations representatives- · to fully participate in the marketplace of ideas. Indeed, one recent study of U.S. Supreme Court cases in which the term "public relations" or one of its many synonyms was used concluded that "even when the justices pointed out publicity practices they deemed unethical, they still emphasized the fact that constitutionally, such practices are protected alongside other con­ tentious exchanges in the marketplace of ideas. "28

At t~e same time, a look at the regulation of political communication alone provides an incomplete picture of the legal restrictions placed on public

Fitzpatrick 7

relations communication. Public relations professionals working on behalf of ·corporate clients and employers also must consider the stricter legal constraints on commercial communication. While companies have a First Amendment right to participate in the commercial marketplace, the Supreme Court has ruled that nonideological, or commercial, speech should be afforded only limited constitutional protection. 29

Regulating Commercial Advocacy

Although the marketplace of ideas concept is most often applied in the context of political communication involving matters of public interest and concern , the U.S. Supreme Court has extended marketplace principles to the commercial arena. Recognizing an informational value in commercial speech-alternativel y defined by the Court as "speech which does no more than propose a commercial transaction" or "expression related solely to the economic interests of the speaker and its audience"-the Court has observed that "the relationship of speech to the marketplace of products or services does not make it valueless in the marketplace of ideas." 30

Yet, commercial speech occupies a lower rung on the Supreme Court's hierarchy of First Amendment values and, therefore, is subjected to a higher

)- degree of regulation, requiring the government to show only that a substan­ tial interest is advanced by a particular restriction. Because commercial speech is "the offspring of economic self-interest," it is less likely to be chilled by regulation, according to the Court. 3 1 This second-class status is also warranted, the Court said, because commercial speech is more easily verified since it deals with matters about which the speaker has knowledge and control. 32

Indeed, the Court has made clear that commercial speech that is "false, deceptive, or misleading" is entitled to no First Amendment protection and the states and federal government are free to prevent its dissemination. 33 The purpose of regulation, according to the Court, is "to ensure that commercial communication flows cleanly as well as freely." 34

The Federal Trade Commission (FTC) and state governments are primar­ ily responsible for regulating commercial advocacy in the United States. Institutions found to have engaged in deceptive or misleading communica ­ tion practices, as defined by the FTC and the states, are held legally liable for their actions and subjected to the penalties outlined in the respective rules and laws. For example, under FTC guidelines, deception is defined as a material representation, omission, or practice that is likely to mislead a reasonable consumer. 35 Falsehoods may be express or implied, meaning that deceptive information may be either technically false or may simply mislead

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8 Ethics in Public Relations

listeners because it is incomplete or in some other way creates a false impression. 36 Sanctions for violations range from cease-and -desist orders to corrective advertising. The intent is to prevent injury to individuals who rely on deceptive information in the commercial marketplace.

All fifty states have enacted legislation aimed at preventing unfair or deceptive commercial "advertising" practices, adopting language similar to FTC rules for both defining deceptive communication practices and in deter­ mining appropriate sanctions. For example, New York's statute explains that "in determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such repr_esentations … "37

Importantly, under FTC guidelines, participants in the commercial mar­ ketplace must be able to verify the truthfulness of their claims. Additionally, the intentions of a speaker are irrelevant in judicial determinations regard­ ing the deceptive nature of particular communications. Liability is deter­ mined on the basis of whether an omission or representation is likely to mislead a reasonable consumer. Deception is determined by the overall impression of a particular communication. In other words, there is little room for error. The only "breathing space" in the commercial marketplace is that a misrepresentation or omission must be material, or important to a consumer's decision to purchase a product or service.

When this strict standard of liability in the commercial marketplace is compared to the broad freedom to communicate in the political market­ place, the significance of distinguishing commercial and political advocacy­ at least for regulatory purposes-is clear. Communication practices in the marketplace of ideas are subjected to different legal standards depending on their classification as either political or commercial speech. Thus, the thresh­ old issue in determining the legal requirements for public relations advocacy in the United States is whether a particular message is categorized as politi­ cal speech or commercial speech.

As noted above, public relations communication historically has been viewed as political expression broadly protected under the First Amendment. However, the potential for at least some public relations expression to be categorized as commercial speech and regulated accordingly is quite real. 38

For example, a recent California Supreme Court decision found that public relations messages disseminated by Nike, Inc., about the company's labor practices were commercial speech subject to the state's strict requirements for truth and accuracy in "advertising" practices. 39

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Fitzpatrick 9

Baselines for Responsible Advocacy in Public Relations

This discussion demonstrates the complexity of legal regulation of political and commercial advocacy in the United States. The two-pronged approach adopted by Congress and the courts has created a complicated scheme that privileges political communication over commercial communication, pro­ viding broad freedom to deceive in the political marketplace and strict lia­ bility for deception in the commercial marketplace. In essence, there is not a marketplace of ideas but two marketplaces of ideas in which public relations professionals practice and two regulatory schemes under which public rela ­ tions advocacy might be judged. 40

At the same time, a common philosophy and shared values and interests are evident in the law's application of marketplace concepts in both the political and commercial arenas. This section discusses four principles fun­ damental to the application of marketplace theory in law that may be useful in establishing ethical baselines for responsible advocacy in public relations: access, process, truth, and disclosure.

Access )-

Two interests are dominant in free speech jurisprudence in the United States: the speaker's right to free expression and the listener's right to receive information important to informed decision making. The speaker's access to the market and a listener's access to information are of paramount impor­ tance to the proper functioning of the marketplace. If certain voices are stifled or listeners do not receive information needed to make informed decisions, then the marketplace fails to operate properly. Just as the U.S. Supreme Court has recognized the need for certain legal limitations to ensure that these important interests are protected, public relations professionals must consider the ethical requirements needed to ensure responsible partici­ pation in both political and commercial contexts.

Determining whether public relations advocacy helps equalize access to the marketplace or,

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