Back in March, the public editor of the New York Times produced the latest edition of what she calls “AnonyWatch”—her attempt to document and evaluate that newspaper’s use and abuse of anonymous sources. Mark Schaver, a former employee of the Courier-Journal and the Kentucky Center for Investigative Reporting, has his own online feature documenting the NYT’s often prodigious use of anonymous sources. Anonymity, background, and off-the-record conditions sometimes provoke ethical problems for journalists, and one of these real-world scenarios recently appeared in my inbox.
In an email, a local TV news employee—let’s call him or her “Yellow”—suggested that I dig into the past of a rival TV network’s news employee, who we’ll call “Green.”
Yellow said that this tip was off the record. It’s not unusual for a source to open a conversation by announcing that everything that follows is off the record, nor is it unusual for journalists to honor their demands. But it’s not the single standard for these types of interactions. As media critic Howard Kurtz wrote back in 2008, “any agreement to put comments off the record … must be worked out in advance between journalist and source. But many reporters say it is common to grant such requests if they are made right after an inflammatory remark.”
When sources go off the record, they do it for two reasons: to protect their identities or to protect the information they are sharing. As an example of the latter case, a powerful political figure who normally goes on the record might share confidential information with trusted reporters off the record in order to build trust or provide context. For the former case, imagine a midlevel political campaign staffer who believes her campaign is headed in a losing direction. She might raise her concerns with a sympathetic political reporter specifically because she wants the reporter to, in turn, publicly raise these same concerns with senior campaign staff while protecting her identity. The midlevel staffer wants her concerns aired, not buried, but she doesn’t want to risk her job, so she goes off the record.
I assumed that Yellow was going off the record in order to avoid being identified as the source of this tip, not because the tip itself should remain secret. I did some preliminary digging, but nothing came up besides the expected information about Green’s TV news career. I wrote Yellow back and asked what exactly I should be looking for. In reply, Yellow sent a link to one of those extortionist mugshot websites that serve no journalistic purpose whatsoever.
As everyone ought to know, the fact that police arrest someone doesn’t necessarily mean that person bears responsibility for any crime at all. Anyone remember Crystal Marlowe, the LMPD detective who routinely arrested innocent people? (She was fired as a result of excellent investigative reporting by RG Dunlop and Jason Riley.)
Sure enough, Green’s picture was on the mugshot website. Through public records, I confirmed that Green had been arrested and charged, but I also very easily found out that the charges had been dismissed by a judge in a pre-trial hearing.
Several questions arose: Did professional journalist Yellow not know that the charges had been dismissed? What kind of professional journalist is unable to locate and use freely available online public records? Or was it that Yellow knew that the charges were dismissed, and was cynically using me in an attempt to torpedo Green’s career? Or—and this seems least likely of all—was Yellow just sharing the information in a collegial “just between us, isn’t this weird and interesting?” type of way without any intent for the information to go public?
Some possible conclusions to draw: Either Yellow isn’t very good at journalism, or Yellow isn’t very good at ethics, or Yellow likes to share malicious gossip about fellow journalists.
And so now to my own ethics conundrum. Yellow still thought the information was off the record, even though I hadn’t agreed to those conditions in advance. Should I violate the presumption of confidentiality by publicly identifying Yellow? If I did, then once identified, Yellow would have nothing to lose by publicly identifying Green in turn. Although logic tells us that mugshots do not equal guilty verdicts, there are plenty of people who believe otherwise. Identifying Yellow might mean that Green’s family would endure some public humiliation.
To complicate matters, journalists who identify off-the-record sources without their consent could potentially face legal consequences. In 1982, political campaign worker Dan Cohen leaked documents about an opposing candidate to a Minnesota reporter in exchange for a promise to keep his name out of the story. Editors overruled the reporter and printed Cohen’s name, causing the campaign to fire Cohen for the unauthorized leak; Cohen successfully sued (Cohen v. Cowles Media Co.) the newspapers for breaking the promise of confidentiality.
In the case of Yellow, it seems obvious that the point of immediately declaring the tip “off the record” was not to keep the tip itself secret—clearly, Yellow’s wanted me to publicly dig up dirt on Green—but to keep Yellow’s identity secret. The circumstances of the tip further muddy the waters since before receiving it I offered no explicit guarantee of confidentiality to Yellow.
This ethical conundrum is going to provide some interesting class discussions, but there’s more at stake here. The Society of Professional Journalists’ Code of Ethics urges journalists to “identify sources whenever feasible” and “Always question sources’ motives before promising anonymity.” But the code also says that journalists ought to “minimize harm”—specifically to “recognize that gathering and reporting information may cause harm” and to “avoid pandering to lurid curiosity.”
In my classes I discuss the difference between teleological (outcome-based) ethics and deontological (duty-based) ethics. Certainly I have a duty to report the truth, but one of my goals is to minimize harm. The potential harm of Yellow identifying Green outweighs the good of me identifying Yellow, and so for now, I will honor Yellow’s request for anonymity, but only in the interest of sabotaging what I perceived to be Yellow’s attempt to smear Green. This is as close as I can come to calling out Yellow without violating confidentiality, even the presumptive sort of confidentiality that was essentially forced upon me when Yellow declared the email off the record.
In the future, however, I can’t guarantee that I’ll make the same decision. It was unethical of Yellow to put me in an awkward position by sharing this information about Green. Furthermore, it’s not my job as a media critic to dig up or publicize the irrelevant personal travails of local journalists; if Yellow truly thought the story was newsworthy, then perhaps Yellow’s news outlet should have done its own story instead of trying to coax me into doing it for them. But of course the story wasn’t newsworthy; it was at best a bit of petty insider gossip, or at worst a smear disguised as a “news tip.”
James Miller is WFPL’s media critic and a journalism teacher at duPont Manual High School. You can find his past work here.