Legal Origins of Ethics in Public Speaking

The First Amendment to the Constitution is one of the most cherished and debated in the Bill of Rights. “Congress shall make no law abridging freedom of speech . . . or of the press” has been discussed in many contexts for over two hundred and thirty years. Thomas Emerson (1970), a Constitutional scholar and Yale Law Professor, asserted that freedom of expression is more than just a right. It is a necessity for having the kind of society we want as Americans. Although we think of “freedom of the press” today as referring to mass media and journalism, “press” here refers to publishing of books, magazines, or pamphlets by anyone.

One of the bases of the First Amendment is an essay written by John Milton in the 1600s, Aereopagitica. This essay on freedom of speech is where the phrases “free marketplace of ideas” and “truth will arise from debate of all ideas” originated. Milton lived in a time when the King of England or Parliament could “censor” published material or speakers, either by keeping it from being published and distributed (later called “prior restraint”), by destroying the publications afterward, or by punishing the producers of the content, sometimes harshly.

In the twentieth century, “freedom of speech” has been generalized into a freedom of expression. This was especially true in the important Supreme Court cases on the First Amendment in the 1950s through 1970s. According to Emerson (1970), such expression is important to our development as human beings individually and in a democracy. Thanks to these historical precedents, we can express ourselves freely in our communities and classrooms, keeping in mind ethical responsibilities to present serious, honest, factual, and well-supported speeches as a matter of respect to your listeners. Additionally, although the First Amendment to the Constitution is usually interpreted by the Supreme Court and lower courts to mean almost no restrictions on freedom of expression, there are a few instances in which the government is held to have a “compelling interest” in controlling, stopping, or preventing certain types of free expression.

One of these instances has to do with threats on the life of the President of the United States, although threats of physical harm against anyone might also result in penalties. Another instance of restrictions on freedom of expression is in those cases where the speaker has the opportunity and means and likelihood of inciting an audience to violence (this is the old “yelling ‘fire’ in a crowded theatre” example). The government has also allowed local governments to have reasonable requirements to avoid mobs or public danger or to uphold community standards, such as permits for parades or limiting how many people can meet in a certain size of building. “Reasonable” is sometimes a matter of debate, as the extensive history of Supreme Court cases on the First Amendment shows.

Another type of restriction on freedom of speech is defamatory speech, which is defined in the United States as:

a false statement of fact that damages a person’s character, fame or reputation. It must be a false statement of fact; statements of opinion, however insulting they may be, cannot be defamation under U.S. law. Under U.S. defamation law, there are different standards for public officials [and public figures] and private individuals. (U.S. Department of State, 2013)

With the Internet and social media, these issues become more complicated, of course. In the past someone could express himself or herself only in limited ways: standing on a street corner, attending a public meeting, putting the words on paper and distributing them, or maybe getting on radio or television (if allowed or if wealthy). Today, almost anyone with a laptop, a webcam, an ISP, and technical know-how can be as powerful in getting a message to the masses as someone owning a newspaper one hundred years ago. While most people use technology and the Internet for fun, profit, or self-expression, some use it for hurt—bullying, defamation, even spreading terrorism. The judicial system is trying to keep up with the challenges that the digital age brings to protecting free expression while sheltering us from the negative consequences of some forms of free expression.

Cultural and Religious Origins of Ethics in Communication

It is hard to separate life aspects such as legal, cultural, religious, and social. Many Americans would say they hold to the Golden Rule: “Do unto others as you would have them do to you.” The Golden Rule is seen as a positive expression of fairness, equity, and trust. Even if there is no legal ruling hanging over us, we expect honest communication and return it. The Golden Rule is related to and a step beyond the “Law of Reciprocity” that determines so much of our social interaction. We also value straightforwardness; respect for the individual’s freedom of choice; getting access to full information; consistency between action and words; taking responsibility for one’s own mistakes (sometimes necessitating an apology and accepting consequences); and protection of privacy. We fear public humiliation and do not want to violate community norms. We also usually view ourselves as honest and ethical people.

Most religions teach the value of truthfulness and that lying intentionally is wrong. The Books of Proverbs, the Ten Commandments, the Mosaic Law, and Jesus Christ’s teaching all point to the immorality of lying and the destruction lying brings personally and communally. Quranic teaching condemns lying, and Buddhism teaches that followers should not deliberately lie. Individuals internalize the norms of their cultures and religions and makes them work for him or her. Sometimes we try to find justification for times when we are untruthful, such as to smooth over relationships and say things that serve as “social lubrication” (Floyd, 2017). Upbringing and family teachings, religious values, experiences, peers, and just plain old “gut reaction” as well as understanding of the First Amendment contribute to our ethical behavior

Philosophers and Communication Ethics

Philosophers throughout history have also written on the subject of communication and public speaking ethics. In fact, one of the first philosophers, Plato, objected to the way rhetoric was practiced in his day, because “it made the worse case appear the better.” In other words, the professional public speakers, who could be hired to defend someone in court or the assembly, knew and used techniques that could deceive audiences and turn them from truth. Aristotle responded to this concern from his teacher Plato in his work, Rhetoric. Later, Quintilian, a Roman teacher of rhetoric, wrote that rhetoric was “the good man speaking well,” meaning the speaker must meet the Roman Republic’s definition of a virtuous man.

In more modern times, English philosophers John Stuart Mill (1806-1873) and Jeremy Bentham (1748-1832) introduced utilitarianism, which presents the ethic of “The greatest good for the greatest number;” that is, whatever benefits the most people is right. A related philosophy, pragmatism, was first discussed by Charles Sanders Pierce (1839-1914). Pragmatists judge actions by their practical consequences. Some ethicists would differ with the pragmatic position, claiming it supports an “ends justify the means” philosophy. When we say “the ends justify the means,” we are saying that a generally unethical action (intentional misstatement of truth, withholding information, or taking any someone’s freedom of choice) is ethical as long as something good comes from it. Many scholars of ethical communication would disagree with the “ends justify the means” philosophy.

The philosopher Immanuel Kant (1724-1804) proposed what was been called the Categorical Imperative: “Act only according to that maxim by which you can at the same time will that it would become a universal law.” To paraphrase, any behavior we engage in should be what we think everyone else on the planet should do ethically. In the twentieth century, Jean-Paul Sartre and others called “existentialists” emphasized that the ability and necessity to freely choose our actions is what makes us human, but we are accountable for all our choices. Jurgen Habermas, a more recent scholar, emphasizes the “equal opportunity for participation” of the communication partners (Johannessen, Valde, & Whedbe, 2008).

This very brief overview of ethics in general and in communication specifically is designed to let you know that the best minds have grappled with what is right and wrong when it comes to expression. But what is the practical application? We believe it is adherence to the factual truth and respect for your audience: in this case, your classmates, peers, and your instructor. An individual might be guided by the Categorical Imperative approach, the pragmatic philosophy, the Judeo-Christian view of “thou shalt not lie” and “speaking the truth in love” (Ephesians 4:15), the Golden Rule, freedom with accountability, or some other view. However, respect for your audience means that you will do your best to present factual, well-documented information designed to improve their lives and help them make informed, intelligent decisions with it.

In addition to respect for the humanity, intelligence, and dignity of your audience, you should be conscious of two other aspects related to ethics of communication: credibility and plagiarism.

Types of Plagiarism

In our long experience of teaching, we have encountered many instances of students presenting work they claim to be original and their own when it is not. We have also seen that students often do not intend to plagiarize but, due to poor training in high school, still are committing an act that could result in a failing grade or worse. Generally, there are three levels of plagiarism: stealing, sneaking, and borrowing. Sometimes these types of plagiarism are intentional, and sometimes they occur unintentionally (you may not know you are plagiarizing). However, as everyone knows, “Ignorance of the law is not an excuse for breaking it.” So let’s familiarize you with how plagiarism occurs in order to prevent it from happening.

Stealing

There is a saying in academia: “If you steal from one source, that is plagiarism; if you steal from twelve, that is scholarship.” Whoever originated this saying may have intended for it to be humorous, but it is a misrepresentation of both plagiarism and scholarship.

No one wants to be the victim of theft; if it has ever happened to you, you know how awful it feels. When a student takes an essay, research paper, speech, or outline completely from another source, whether it is a classmate who submitted it for another instructor, from some sort of online essay mill, or from elsewhere, this is an act of theft no better or worse than going into a store and shoplifting. The wrongness of the act is compounded by the fact that then the student lies about it being his or her own. If you are tempted to do this, run the other way. Your instructor will probably have no mercy on you, and probably neither will the student conduct council.

Most colleges and universities have a policy that penalizes or forbids “self-plagiarism.” This means that you can’t use a paper or outline that you presented in another class a second time. You may think, “How can this be plagiarism or wrong if I wrote both and in my work I cited sources correctly?” The main reason is that by submitting it to your instructor, you are still claiming it is original, first-time work for the assignment in that particular class. Your instructor may not mind if you use some of the same sources from the first time it was submitted, but he or she expects you to follow the instructions for the assignment and prepare an original assignment. In a sense, this situation is also a case of unfairness, since the other students do not have the advantage of having written the paper or outline already.

Another issue that often comes up with students happens when two or more students, perhaps in the same section or different sections of the same course and same instructor, submit the same assignment. When confronted, the student say, “We worked on it together.” If your instructor wants you to work collaboratively, he or she will make that clear. Otherwise, do not do this–the situation usually ends quite badly for students.

Sneaking

In “sneaking plagiarism,” instead of taking work as a whole from another source, the student will copy two out of every three sentences and mix them up so they don’t appear in the same order as in the original work. Perhaps the student will add a fresh introduction, a personal example or two, and an original conclusion. This “sneaky” plagiarism is easy today due to the Internet and the word processing functions of cutting and pasting.

In fact, many students do not see this as the same thing as stealing because they think “I did some research, I looked some stuff up, and I added some of my own work.” Unfortunately, this approach is only marginally better than stealing and will probably end up in the same penalties as the first type of plagiarism. Why? Because no source has been credited, and the student has “misappropriated” the expression of the ideas as well as the ideas themselves. Interestingly, this type of plagiarism can lead to copyright violation if the work with the plagiarism is published.

Most of the time students do not have to worry about copyright violation when they correctly use and cite material from a source. This is because in academic environments, “fair use” is the rule. In short, you are not making any money from using the copyrighted material, such as from a published book. You are only using it for learning purposes and not to make money, so “quoting” (using verbatim) with proper citation a small amount of the material is acceptable for a college class.

If, however, you were going to try to publish and sell an article or book and “borrowed” a large section of material without specifically obtaining permission from the original author, you would be guilty of copyright violation and by extension make your organization or company also guilty. When you enter your career field, the “fair use” principle no longer applies and you will need to obtain permission from the copyright holder and pay fees to use all or portions of a work. For more information on this very important and often misunderstood subject, visit the Creative Commons website and the Library of Congress.

One area in speeches where students are not careful about citing is on their presentational slides. If a graphic or photo is borrowed from a website (that is, you did not design it), there should be a citation in small letters on the slide. The same would be true of borrowed quotations, data, and ideas. Students also like to put their “works cited” or “references” on the last slide, but this really does not help the audience or get around the possibility of plagiarism.

Borrowing

The third type of plagiarism is “borrowing.” In this case, the student is not stealing wholesale. He or she may actually even give credit for the material, either correctly or incorrectly. He might say, “According to the official website of . . .” or “As found in an article in the Journal of Psychology, Dr. John Smith wrote . . .” Sounds good, right? Well, yes and no. It depends on whether the student has borrowed in a “sneaky way” (cutting and pasting passages together but this time indicating where the sections came from) or if the student is using the ideas but not the exact wording. In other words, has the student adequately, correctly, and honestly paraphrased or summarized the borrowed material, or just “strung the sources together” with some “according to’s”?

Students often are puzzled about what and when to cite borrowed material from sources. At this point, your instructor may have specific instructions, and you should always follow those first. However, in most cases you can go by the “repeated information” rule. If you are doing research and access ten sources, and over half of them have the same piece of information (usually a historical or scientific fact or statistic), you can assume this is “common knowledge.” That is, it is common to anyone who knows anything about the subject, and then you do not have to have a citation. If you find a piece of information in one source only, it probably represents the original research or viewpoint of that writer, and should be cited clearly. On the other hand, there are exceptions. An often-cited or used piece of information has an original source, such as a government agency, and you would be better off to find the original source and cite that. Secondly, citing sources adds to your credibility as a prepared speaker. Again, your instructor’s directions on what and how much your cite bear upon this advice. Generally, it is better to err on the side of citing more than less.

Ethically Crediting Sources

In using source material correctly, a speaker does three things:

1. He or she clearly cites the source of the information. It is here that the oral mode of communication differs from the written mode. In a paper, such as for literature, you would only need to include a parenthetical citation such as (Jones 78) for Modern Language Association (MLA) format, indicating that a writer named Jones contributed this idea on page 78 of a source that the reader can find on the Works Cited Page. In a paper for a class in the social sciences, an American Psychological Association (APA) format citation would be (Jones, 2012) or (Jones, 2012, p. 78). The first would be used if you summarized or paraphrased information from the source, and second (with the page number) is used to indicate the words were quoted exactly from a source. Obviously, in that case, quotation marks are used around the quoted material. In both cases, if the reader wants more information, it can be found on the References Page (APA) or Works Cited Page (MLA).(Note: This text and its examples use APA because the Communication discipline is considered a social science. As with other advice, use the format your instructor directs you to use.)

   A speech is quite different. Saying “According to Jones, p. 78,” really does very little for the audience. They can’t turn to the back of the paper. They don’t have a way, other than oral communication, to understand the type of information being cited, how recent it is, the credibility of the author you are citing and why you think he or she is a valid source, or the title of the work. It is necessary in a speech to give more complete information that would help the audience understand its value. The page number, the publishing company, and city it was published in are probably not important, but what is important is whether it is a website, a scholarly article, or a book; whether it was written in 1950 or 2010; and what is the position, background, or credentials of the source.

   So, instead of “According to Jones, p. 78,” a better approach would be,

   “According to Dr. Samuel Jones, Head of Cardiology at Vanderbilt University, in a 2010 article in a prestigious medical journal…”

   Or

   “In her 2012 book, The Iraq War in Context, historian Mary Smith of the University of Georgia states that…”

   Or

   “In consulting the website for the American Humane Society, I found these statistics about animal abuse compiled by the Society in 2012…”

   This approach shows more clearly that you have done proper research to support your ideas and arguments. It also allows your audience to find the material if they want more information. Notice that in all three examples the citation precedes the fact or information being cited. This order allows the audience to recognize the borrowed material better. The use of a clear citation up-front makes it more noticeable as well as more credible to the audience.

2. The speaker should take special care to use information that is in context and relevant. This step takes more critical thinking skills. For example, it is often easy to misinterpret statistical information (more on that in Chapter 7), or to take a quotation from an expert in one field and apply it to another field. It is also important to label facts as facts and opinions as opinions, especially when dealing with controversial subjects. In addition, be sure you understand the material you are citing before using it. If you are unsure of any words, look their definitions up so you are sure to be using the material as it is intended. Finally, it is important that you understand the type of publication or source you are using, for example, a scholarly publication in contrast to a journalistic one.
3. The speaker should phrase or summarize the ideas of the source into his or her own words. Paraphrasing, which is putting the words and ideas of others into one’s own authentic or personal language, is often misunderstood by students. Your instructor may walk you through an exercise to help your class understand that paraphrasing is not changing 10% of the words in a long quotation (such as two or three out of twenty) but still keeping most of the vocabulary and word order (called syntax) of the source. You should compose the information in your own “voice” or way of expressing yourself.In fact, you would be better off to think in terms of summarizing your source material rather than paraphrasing. For one thing, you will be less likely to use too much of the original and therefore be skirting the edge of plagiarism. Secondly, you will usually want to put the main arguments of a source in your own words and make it shorter.

Here is an example of an original source and three possible ways to deal with it.

Original information, posted on CNN.com website, October 31, 2015:

“The biggest federal inmate release on record will take place this weekend. About 6,600 inmates will be released, with 16,500 expected to get out the first year. More than 40,000 federal felons could be released early over the next several years, the U.S. Sentencing Commission said. The sentencing commission decided a year ago to lower maximum sentences for nonviolent drug offenders and to make the change retro-active, with the inmate releases effective November 1, 2015. Sentences were reduced an average of 18%, the commission said. Early release will be a challenge for the inmates as well as the judicial bureaucracy” (Casarez, 2015).

With that as our original source, which of the following is truly paraphrasing?

The CNN News website says the federal government is releasing 40,000 felons from prison in the next few years.

According to a report posted on CNN’s website on October 31 of 2015, the federal government’s Sentencing Commission is beginning to release prisoners in November based on a decision made in 2014. That decision was to make maximum sentences for nonviolent drug offenders shorter by an average of 18%. Over the next several years over 40,000 federal felons could be let go. However, this policy change to early release will not be easy for the justice system or those released.

The largest release ever of federal inmates will take place in early November. At first 6,600 inmates will be released, and then over 16,000 over the first year. The U.S. Sentencing Commission says it could release over 40,000 federal felons over the upcoming years because the sentencing commission decided a year ago to lessen maximum sentences for nonviolent drug offenders and to make this happen for those already in jail. When the Sentencing Commission says that when it made that decision, the sentences were reduced an average of 18%. Early release will be a challenge for the felons as well as the judicial system. This came from a story on CNN News website in later October 2015.

If you chose the second citation, you would be correct. The first version does not really interpret the original statement correctly, and the third choice imitates the original almost entirely. Choice 2, on the other hand, is in completely different language and identifies the source of the information clearly and at the beginning.

This exercises may raise the question, “Should I always paraphrase or summarize rather than directly quote a source?” There are times when it is appropriate to use a source’s exact wording, but quoting a source exactly should be done sparingly—sort of like using hot sauce! You should have a good reason for it, such as that the source is highly respected, has said the idea in a compelling way, or the material is well known and others would recognize it. If you do, you should make it clear you are quoting them exactly by the way you introduce and end the borrowed material.