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1) Misinformation and/or false information shall not be published or permitted in the blogosphere.
Here’s my personal belief on misinformation: Whether done by my allies or opponents, by those who agree with me or who disagree, I strongly dislike and do not approve of the use of misleading information to support or oppose any candidate, party or issue. To intentionally mislead, deceive or give the wrong impression — by giving false information or by deliberately omitting important information — is lying. Similarly, it is irresponsible and unethical to make a conclusion and argument when you know, but do not disclose, that you do not have all the material facts (e.g., calling a man a bigamist because he’s been married two times, without checking to see if he had been widowed or divorced prior to the second marriage).
It is, however, a direct rejection of the position take by Justin at Blogbook (on its ethics page!), where he asserts that
“[M]isinformation is the sophist’s ball peen hammer. If facts won’t win your client’s case, perhaps smoke and mirrors will do. If the White House can use misinformation, so can anyone who writes a weblog.”
“In all articles, a distinction must be made between actual rock-solid information, and rumour/opinions.. . . It is not as difficult as it may at first seem to ensure you make the distinction; most newspaper articles are in fact written this way, albeit tailored to suggest in the reader’s mind the writer’s opinion.”
(I also like Jadester’s suggestion that “Bloggers should make clear their usual political leaning somewhere on their own blogpage, preferably the front page,” on with a link to “statement of political leaning,” which is why I prominently display my “leaning” toward client/consumer rights.)
The standard that I’m suggesting should not be the least bit difficult for a lawyer to follow in writing a weblog (although it might require some will power). Legal education is primarily about learning to discern which facts and factors are important, material, relevant, etc. Furthermore, both the Model Rules and the Code of Ethics prohibit misleading and deceptive advocacy (and conduct) in many situations.
There’s Model Rule 8.4 Misconduct (“It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation”), with its Code cognate at DR 1-102(A.4). Also, Model Rule 4.1 requires Truthfulness in Statements to Others in representing a client, what are certainly analogous to advocating a cause, ideology or candidate. Comment One to Rule 4.1 explains (emphasis added):
A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.
Comment Two to Model Rule 3.3 on Candor Toward the Tribunal also presents analogous guidance on the ethical limits to advocacy:
This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.
[Also, see DR7-106 from the professional Code, concerning a lawyer’s duties to the tribunal (including disclosure of “Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.”)]
Webloggers (especially lawyers) who feel they owe less of a duty of honesty to readers than a lawyer does to a court, should please do us the courtesy of stating that policy clearly and prominently on their homepages.
By coincidence, there was a lead editorial two days ago in the Albany (NY) Times Union (“Best papers are fair and honest,” 01-17-04 , availabe free for 7 days), that is highly relevant to this discussion. After explaining that American newspaper were once highly and openly slanted, like British newspapers are now and always have been, editor Rex Smith states (emphasis added):
“One factor behind the mid-[20th]-century trend toward straight news was the death of competing papers, leaving most communities with only one local newspaper. Publishers soon discovered that credibility appealed to a wider audience than predictable bias. And as the ranks of newsrooms filled with better-trained journalists, an ethic of independence took hold.
“Yet there is a recent movement in American journalism — still small, but undoubtedly present — toward the British model of unblushing bias. . . .
“And at least in political news, Americans are increasingly concerned about biased coverage. Only 38 percent of the people who responded to a recent poll by the Pew Research Center said the campaign coverage they had followed wasn’t biased. That number has fallen steadily since 1988, when 62 percent said coverage was not biased.
“Those who want their news straight ought to be wary. Americans deserve fair and honest reporting, and the appearance of Brit-style journalism can only divide us into competing camps of people who know the news only from their own biased point of view.”