Constitution Daily

Smart conversation from the National Constitution Center

Subway death photo prompts storm of criticism

December 6, 2012 by Gene Policinski


The New York Post‘s Dec. 4 front-page photo taken moments before a man who was pushed off a subway platform was killed by a train has prompted a tidal wave of criticism.

A second incident, this one overseas, also is fueling criticism of the news media. An Australian radio program reportedly duped a nurse into providing information about about the pregnant Duchess of Cambridge, Kate Middleton, and her serious bout with morning sickness. The information was reported here on cable and broadcast outlets.

If history holds, both incidents will prompt calls for heavy-handed rules on how the news media operate. Britain already is in turmoil over a government report calling for some kinds of direct official review of news media in the wake of a cell-phone hacking scandal involving publications owned by media mogul Rupert Murdoch.

Better if free and open discussion in the marketplace of ideas substitutes for legislation or court rulings. Bad law follows bad cases, and neither incident justifies draconian legal action, though both certainly raise ethical questions to which journalists should respond.

“Trash” and “guttersnipe, ghoulish” were some of the more polite online criticisms of the Post‘s use of a freelancer’s photo, published under one of the tabloid’s trademark splashy, big headlines: “Pushed on the subway track, this man is about to die: DOOMED.”

The freelance photographer who shot the photo also faces a storm of critics accusing him of failing to help the man. Coming forward today, the photographer said he was flashing his strobe light repeatedly, trying to warn the train operator — not just taking a photo — and that he was too far away to reach the man in time. Fellow photographers said there were others on the platform who did not or could not help the fallen man, so all should be considered equally culpable or innocent.

Just what should editors and news executives decide to post, publish or air? With a free press, answers will vary from journalist to journalist.

Journalists should have their own standards. They should know their audiences well enough to set boundaries of ethics and taste and still convey essential news — which at times will be shocking, even repulsive — without pandering or exploitation.

Codes of ethics at news organizations or professional associations are good starting points for internal editorial discussions of judgment calls. But no ethical dilemma is exactly like the last one. Each should prompt new review and consideration in newsrooms.

There was a time when gory accident photos were a daily staple for at least small-to-mid-size newspapers. Over time, readers objected. Most editors now reject such pictures without overriding reasons to print them.

Now let’s look at government attempts to legislate ethics, fairness and good taste in the news media.

  • The onetime “Fairness Doctrine” was imposed on TV to stimulate diverse ideas. The idea boomeranged and had the reverse effect.

  • The FCC’s efforts to punish broadcasters for suggestive programming and brief nudity, prompting years if not decades of legal battles.

No “one-size-fits-all” legislation or regulation will work. It substitutes government rule-making for independent, editorial decisions — never a good idea and counter to the First Amendment free-press provisions written by our nation’s Founders.

Along with news organizations, we the people are part of that marketplace of ideas the First Amendment creates. Consider the public outcry over objectionable on-air comments by Don Imus a few years ago. Public opinion moved network executives to swift action that penalized the talk-show host — who ultimately returned to work, chastised and apparently wiser for the experience.

If you feel strongly about the New York Post photo or the Kate Middleton report, or anything else in today’s flow of news and information, speak out and speak up. But please don’t write your legislator.

Gene Policinski is Senior Vice President/Executive Director of the First Amendment Center. He is a veteran journalist whose career has included work in newspapers, radio, television and online operations.

This story first appeared on the First Amendment Center’s website at


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