Editor’s note:  This story appeared in the spring 2014 print issue of Gateway Journalism Review.

In late February, NBC’s “Today” show hired two teenage-looking actors (both aged 21 or older) and sent them to a liquor store in New Jersey. The actors loitered outside, asking customers entering the store to buy beer for them. All male customers refused, but several women took their money and purchased their six-packs.

This was not a huge story and probably proved nothing. It did, however, stimulate discussion about the adult role in underaged drinking, especially when the “Today” staffers interviewed the president of Mothers Against Drunk Driving about the implication that women were more willing than men to provide teens with alcohol.

Television newspeople love this kind of story – and, because of their visual dimension, can do it very well. But news stories that involve reporters as active participants in making the news also raise ethical questions, as can be seen by the controversy resulting from KSDK’s investigation of security at five St. Louis-area schools. KSDK, an NBC affiliate, was not alone in this caper. According to a report in the New York Times, WNBC in New York and the “Today” program did similar investigations of school security.

Were they wrong to do so? What ethical principles did they violate in producing these stories? Is this a case in which the ends – an investigation of security in our public schools – justified the means the reporters used?

Investigative journalism has a time-honored place in the U.S. media system. Since Nellie Bly had herself admitted so she might examine conditions in lunatic asylums of the 1880s, reporters have gone undercover to discover the truth about the meat-packing industry, child labor, prison life, drug rings, supermarkets, airport security and a host of other disturbances in the American dream. Actually, Bly was not even the first; New York Tribune reporter Julius Chambers had arranged his own commitment to an asylum 15 years earlier. And just as the power and popularity of investigative journalism has grown with advances in computing and surveillance technology, so has the debate over the methods of investigation that are appropriate for reporters to use.

The first question to consider is whether the KSDK story was worth doing. Unfortunately, names such as Newtown, Columbine, Arapahoe and Roswell, and many others, have been hammered recently into the American consciousness because of tragic events in these communities. Gun control and school security have become matters of public concern and debate. While it might be questioned whether sending reporters to open school doors is the best (or only) way of reporting this story, it nevertheless is a story of public importance, and it might well be significant that the KSDK reporter found that four of the five schools he visited had effective security systems in place. Parents and pupils from these schools must draw reassurance from this.

What about the method KSDK used? In Tripp Frohlichstein’s accompanying article, this is referred to as an “undercover investigation.” In fact, it was nothing of the sort. Some years ago Edmund Lambeth of the University of Missouri published a fine article on the ethics of investigative reporting. Lambeth used the phrase “passive deception” for what KSDK did: the reporter appeared as a public citizen might, sampling a restaurant (food critic) or film or auto repair garage – or, in this case, checking to see if anyone could walk into the school unimpeded. At Kirkwood High School, he could – and so could anyone else. Lambeth distinguished “passive deception” from “aggressive deception,” which involves role-playing (pretending to be someone else) or a form of lying. The “Today” program experiment described at the beginning of this article is a form of aggressive deception, which can be less acceptable in an ethical sense. The KSDK reporter was not in disguise and acted as could any member of the public, armed or not.

Lambeth also discussed the notions of “benign” and “invasive” deception. Benign deception refers to cases in which the reporter gathers information without altering the context of the situation, performing mainly eyeball surveillance. He distinguished this from “invasive” deception, in which the reporter misrepresents his identity or provides falsified information, such as incorrectly filling out a job application so the reporter might obtain a position. These invasive acts change the context – and, in doing so, might alter the story that is reported, and therefore raise a new set of ethical questions. Again, using Lambeth’s ethical standard, KSDK’s benign reporting did not alter the context of the situation in the schools, and therefore was not, on its face, unethical.

Frohlichstein castigates KSDK for failing to meet the standard of the Society of Professional Journalists’ ethics code that suggests “undercover and other surreptitious methods” should be avoided except in exceptional circumstances, such as when there is no other way of reporting the story. The SPJ code is only one ethical system available to journalists, among many – and, as shown above, it does not apply in this case, as the KSDK reporter was not “undercover” or using surreptitious means.

Ethicist Sissela Bok suggested that a “test of publicity” might be used in determining whether investigative methods are ethical. According to Bok, this is an issue of transparency: to what extent is the reporter or news organization willing to assert and defend publicly the methods used in generating information? In this case, KSDK explained quite explicitly what its reporter had done in approaching the schools, seeking entry, identifying himself to authorities, and leaving the scene. This worked in four of the five cases. KSDK’s procedures broke down when the reporter encountered the one school with no apparent security system in place. But this does not mean the station’s work fails Bok’s test.

In Frohlichstein’s article, KSDK is taken to task for what happened after the reporter left the scene at Kirkwood. This is a purely consequentialist argument, trying to make the reporter responsible for what happened after he reported the story – a classic case of blaming the messenger. Is it the reporter’s fault that the principal put the school on lockdown? That a teacher incited his students by promising to stand at the door and sacrifice himself in protecting them? That another teacher told a student to arm himself with scissors and be prepared to kill the person if it came to that (the student’s mother reported this on Facebook)? That another student spent 40 minutes thinking she was going to die? Clearly, the school administration and faculty were caught unprepared, just as they were unprepared earlier when the reporter was able to enter the school, walk past several occupied classrooms, ask a teacher for information without being questioned, and the school was unable to locate the security officer when the reporter finally reached the main office. In this circumstance, should parents and students be angered by the television station that exposed this remarkable level of unpreparedness, or the school officials who failed to provide them with better protection?

KSDK probably was guilty of one error of judgment: selecting Kirkwood High School as one of its five schools. Kirkwood lies in the heart of middle-class St. Louis, the comfortable home of many members of the city’s media industry. Frohlichstein himself previously has been employed by KHS, and two of his children attended Kirkwood schools. Putting this obvious conflict of interest aside, one is left with two thoughts:

• We are given the impression that KSDK’s reporting of this story led to a storm of public disapproval, but why do we not hear about the parents and pupils at the other four schools? Were they unhappy with the station and its reporting in the same way?
• Would the media establishment be attacking KSDK if it had substituted a high school in South County or North St. Louis for Kirkwood in checking on school security?

Then again, given the value of public attention to ratings, maybe KSDK knew exactly what it was doing.

Walter Jaehnig is the retired director of the School of Journalism at Southern Illinois University Carbondale. He was a reporter and editor with the Louisville Courier-Journal, and taught reporting and media ethics at Indiana, Wyoming and SIUC.

Smith Square in London is a collection of Georgian buildings sheltering government ministries, European Commission offices – and, because the square is around the corner from Parliament, countless lobbyists. Until recently, both the Conservative and Labour party headquarters were in Smith Square. William Thomas Stead, the father of British tabloid journalism, lived there until he sailed for New York on the Titanic in 1912. Given its proximity to the seat of political power, it seems appropriate that a Smith Square art gallery this summer featured an exhibition picturing two “compelling and competing visions of the press.” The contents of one room, designed by a journalist, make the argument for the continued protection of a free press. An adjoining room, prepared by victims of Britain’s recent phone-hacking scandal, presents the case for a more accountable press by showing how “today’s press has hurt and damaged us.”

These competing visions originated in the publication of the 2,000-page Leveson report (named after Brian Leveson, a highranking judge in the British courts) last November, the result of an exhaustive examination of the phone-hacking scandal and the symbiotic relationships between journalists, the police and public officials. Criminal charges have been filed against many, the News of the World was closed by Rupert Murdoch’s News International, and news media ethics have been subjected to close scrutiny.

“Reactions to Leveson have been both impassioned and highly divisive,” the gallery’s website designers noted, with classic English understatement.

Britain has enjoyed a broad form of press freedom since 1690, when government licensing of publications ceased. Critics of Leveson suggest that press freedom faces its greatest threat since then. Leveson, however, argued that this is a new era, and that new standards of press performance are needed. The problem, to Leveson, is that the commercial culture has led “time and time again, (to) serious and uncorrected failures within parts of the national press that may have stretched from the criminal to the indefensibly unethical, from passing off fiction as fact to paying lip service to accuracy. … In doing so, far from holding power to account, in these regards the press is exercising unaccountable power which nobody holds to account.”

How might the press be held to account? This is the nub: Do you still have a free press if any part of
press performance and enforce corrective measures? Leveson, among his many recommendations, proposed a “voluntary, independent, selforganised regulatory system,” backed by statutory authority, be developed.

It was time for government to recognize that it had a legal duty to protect, not restrict, freedom of the press – and, accordingly, it needed to develop a regulatory agency that had an “appropriate degree of independence from the industry, coupled with satisfactory powers to handle complaints, promote and enforce standards, and deal with dispute resolution.” In other words, the power of law should be used, in collaboration with the news media’s attempts to regulate themselves, to develop an independent (nongovernmental) monitor.

The political establishment accepted part of this advice. After weeks of torturous negotiations, Prime Minister David Cameron announced in March that the leaders of the three major political parties agreed that a Royal Charter was the solution.

A charter, granted by the Queen through her Privy Council, would empower a new press commission to monitor media performance. This would obviate the need for Parliament to adopt a law that regulated the press. (A Royal Charter was used in a similar manner in establishing the BBC to protect its editorial independence.)

The new press monitor would replace the Press Complaints Commission, a sort of watered-down accountability council, which had been an unmitigated failure, according to Leveson. It would comprise 12 members: seven independents (public), and five representing the news industry. It would be funded by the Press Standards Board of Finance (Pressbof), the organization that funds the current PCC. It would have the authority to force apologies from newspapers deemed to have committed serious mistakes or ethical violations. It also would provide whistleblower protection for journalists forced by their employers to commit unethical acts. In turn, the press monitor would be audited by a “recognition panel,” yet another body that would monitor the press monitor. Publishers would be free to not participate in press monitor investigations, but they would be open to punitive (exemplary) damages in legal proceedings. Finally, the monitor should develop an arbitration (non-judicial) tribunal that would hear and dispose of many complaints against newspapers without incurring heavy legal expenses.

The newspaper corporations quickly rejected this plan and announced they were sending their own Royal Charter to the Privy Council for approval. The industry’s version cut out the whistleblower; tried to further insulate the press monitor from political interference by specifying that the charter could be amended only by the industry, press monitor and recognition panel acting unanimously (which was said to establish a “triple lock” guarantee that the press monitor would fulfill its mission); weakened the criteria for forcing apologies from newspapers; and gave the industry veto power over appointments to the press monitor. This final feature eventually was dropped when the Guardian, Financial Times and Independent newspapers failed to support the industry’s Royal Charter. The industry charter also opposed the arbitration panels on behalf of more than a thousand local and regional newspapers, which incur about 40 percent of the complaints taken to PCC, fearing this would provide fertile ground for money-hungry attorneys wanting to file complaints against erring newspapers.

And here the matter sits. Officially, both charters have been referred to the Secretary of Culture, Media and Sport to determine which charter should be sent to the Privy Council for the Queen’s approval. In the meantime, individuals and groups are weighing in on the war of words. Hacked Off, the organization of victims in the phone-hacking scandal, supports the political Royal Charter, and said the industry charter “demonstrates once again that the press thinks it is above the law.” The director of Liberty, a civil rights organization, said the whole notion of a Royal Charter for the press is “bizarre: an overly complex and bureaucratic system.” The Committee to Protect Journalists observed from New York that the political Royal Charter is “counter to the bedrock principles of democracy.” The New York Times argued that these unwieldy regulations “would chill free speech and threaten the survival of small publishers and Internet sites.” Public opinion surveys show readers both favor and oppose the industry’s Royal Charter, and both trust and distrust the government to develop a solution to this problem. Alan Rusbridger, editor of the Guardian, recently called upon the government to reopen negotiations to try to reach an outcome to this standoff.

Meanwhile, the rough-and-tumble world of British journalism goes on, with stings, exposures and aggressive investigations, such as the Guardian’s NSA surveillance reporting. Whether Leveson’s efforts will change this world is anybody’s guess.