Aside from driving an automobile, is there any human enterprise more encumbered with stupid rules, regulations, and guidelines than the practice of ethical journalism?
The U.S. Constitution states the basic laws and principles behind the governance of the United States in about 4,500 words, while the New York Times Company Policy on Ethics in Journalism spends twice as many delineating the ethical dos and don'ts of getting a Times story.
Among the Times' many sensible instructions is that its journalists avoid direct "conflicts of interest," such as owning stock in a company they cover. That makes sense. Outside of anarchists and nihilists, nobody would want the reporter who covers the Microsoft beat holding a big sack of Microsoft stock.
Like other newsgathering organizations, the Times also counsels its staff to avoid any "appearance" of a conflict of interest. Avoiding appearances of conflicts of interest may sound simple, but in practice it's harder to do than dodging junk food. To begin with, that which constitutes an "appearance" is cosmically subjective. Like vague laws, vague guidelines such as "avoiding appearances" keep their subjects in a constant state of guilt and fear. And, as you can imagine, this constant state is the product of design, not accident. It keeps the workers in line.
In the Talking Business column in Business Day on Saturday, Joe Nocera wrote about a lawsuit by Oracle against a division of SAP, claiming theft of intellectual property. Mr. Nocera learned after the column was published that Oracle was represented by the law firm of Boies, Schiller & Flexner, where his fiancée works as director of communications. To avoid the appearance of a conflict of interest, Mr. Nocera would not have written about the case if he had known of the law firm's involvement.
I take the Times at its word that Nocera wouldn't have written about the case had he known that his fiancee worked for a law firm that represents Oracle. But in what universe does it make sense for him to have buried his pen because of his fiancee's job? To begin with, the piece Nocera wrote is a work of commentaryand opinion, not a clinical example of objective journalism. Although reported out nicely, it's a subjective document, written in the first person. It's the sum total of what Nocera thinks about the subject. Almost by definition, such a piece is going to be slanted and biased in the direction of what Nocera thinks is true. And, to drive a 10-penny nail through this Editors' Note, slants, biases, and prejudices are exactly what Nocera's editors want him to contribute to the paper. It's almost his job description! It makes no sense to police his work based on where his fiancee draws a paycheck.
If Nocera (and Times editors) really believe that he should have recused himself from the case because of his fiancee's employment status, does that mean that he should recuse himself from writing about all Boies, Schiller & Flexner clients? If I ran a big company and wanted to avoid Nocera's gaze—which, considering his brilliance, would be an excellent idea—I'd put Boies, Schiller & Flexner on some sort of small retainer so it could serve as a prophylactic. Under the Times'ethics policy, my company would be treated to an automatic bye as long as Nocera remains engaged or married to that Boies, Schiller & Flexner employee.
Like other veteran journalists, Nocera can't walk his beat without constantly bumping into people he owes favors or people who owe him, people who hate him or love him, and people who want to see him succeed or see him fail. This is where the Times policy backfires. Consistently enforced, it would deprive readers of Nocera's intelligence whenever his personal life has bumped into his professional life, which is to say: all over the place. To be clear, I'm not suggesting that Nocera occupy an ethics-free zone in which he receives payoffs from the companies he writes about. But holy Moses! Ethics should serve journalism instead of journalism serving ethics.