Adam Cohen has a fairly strident op-ed today in the NYT arguing that bloggers need to have a code of ethics, like journalists do.  Ann Althouse writes that a code is unwarranted, while Larry Ribstein (who we know is generally against regulation) argues that while a code should not be regulated, a market could develop for voluntary code adoption.

Mr. Cohen makes the galling statement that "[m]any bloggers who criticize the MSM's ethics, however, are in the anomalous position of holding themselves to lower standards, or no standards at all."  I want to ponder the gaping divide between posting a "Code of Ethics" on a blog and having "no standards at all."

What is a "code of ethics"?  Sarbanes-Oxley requires reporting companies to have one posted on their website, and apparently journalists have one, too.  The Pink Ladies and the T-Birds had a "code" in Grease 2.  What do all of these codes have in common?  They are unenforceable to the extent that there is no external body to sanction individuals who breach the code.  The existence and breach of the code may be some evidence in a trial under a separate cause of action for say, breach of fiduciary duty by directors who approve of loan transactions to officers in violation of a code of ethics, but the breach itself does not trigger an enforcement action.  (The Pink Ladies code may have been useful as some evidence in an IIED action by the Michelle Pfeiffer character ("Stephanie"), but I doubt she would have prevailed.)

Lawyers adhere to a code of ethics, but that code has been actually codified into rules adopted by bar associations and state supreme courts.  Violations of those rules can result in losing one's license to practice law, in addition to the violation's being used as evidence in a malpractice proceeding.  However, if an officer of a company breaches a code of ethics, that officer doesn't have a professional license to return and isn't barred from being an officer in the next company that comes along.  The market may (or may not) restrict his mobility, but no regulatory agency does.  If a journalist breaches this sacrosanct code of ethics, the journalist may be fired, but that's about it.

So, if Gordon and I came up with a code of ethics (and surely we could come up with a better list than Mr. Cohen's check sources/note conflicts/post corrections list), I don't think that anything additional would happen to me if an unethical action of mine breached the code.  Right now, if it came to light that W.R. Hambrecht was paying me to argue night and day about online IPO auctions (I wish), I think I would feel the heat whether or not I had a code conspicuously posted on my blog.

Now, it may be that we blog in a rarefied part of the blogosphere.  Most of the blogs we read are written by law professors or lawyers, and we operate under a set of professional norms; as Larry noted, norms constrain behavior.  Few of us blog anonymously, and even those who do blog with colleagues who surely know who they are.  No one blogs anonymously to mask conflicts of interest or sloppy fact-checking; anonymous blawgers are anonymous to be more honest, not less.

Right now, Gordon and I blog under an unspoken code of human beings, which I'm sure is broader than the journalistic code of ethics.  I would hate for us to aim lower in our standards.

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