an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times has been admirably shining the light on its own use of anonymous sources. The public editor public editor, Clark Hoyt, reported in his column Sunday about the results of a “study” (coding information from just 12 issues!) about the use of anonymous sources in The Times. And Jill Abramson, the managing editor, has been answering readers questions.
One question in particular warms my heart as it is closely related to a recent post of mine. Frank Scalpone asked:
Q. It's easy enough to defend anonymous sources at the Pentagon Papers level. But let's look at a lower level, like the frequent statements to reporters by corporate or governmental employees who anonymously disclose information, not of illegal activity but of, say, finances or plans, which his/her boss would rather not have disclosed, and in fact has asked the employee to keep his mouth shut on the subject.
Not a week goes by without my seeing in your pages a statement attributed to an employee who has requested anonymity because he has been told not to disclose certain information.
Are you not, usually to gain an often unimportant disclosure, assisting the source to violate a request or order from his employer? Why do I find this unwholesome?
Scalpone’s unease is well placed. An employee is misappropriating employer information if the employer has a legitimate interest in keeping the information confidential. But Abramson’s response simply ignores the employer’s interest. She answered:
A. You are right, of course, that some anonymous sources are not exposing important illegalities, cover-ups or public deceptions. But their information or observations may nonetheless add an important dimension to an article.
It is crucial to understand how the terrain for reporting has changed. Within government at all levels and in the business world there has been a culture of far greater secrecy. Certainly, public officials and business leaders are going to try to keep secrets and control the message. A journalist's job is to dig, expose secrets (as long as they matter) and present a truthful, balanced picture. This is more difficult in an environment where gag agreements are now commonplace for employees or departing executives. Leak investigations make government employees fearful of speaking on the record. Often, the only people who are truly authorized to speak for attribution are paid spokesman, who merely parrot the official line. Their remarks are usually included in news stories, but to leave their statements unchallenged by other sources who are as knowledgeable but not officially designated to speak in public, would mean that our journalists were not giving readers a full picture of the truth. Many sources now fear that their supervisor will see unsanctioned remarks in the press, even statements that don't seem at first blush to be either negative or controversial, especially when every public utterance is quickly picked up and can ricochet across the Internet. So some unofficial but still credible sources ask to withhold their names to avoid getting into trouble. Perhaps this is, as you note, unwholesome. Again, our main concern is not whether a source is wholesome or unwholesome, but whether he/she is credible and whether the information from the source is important to getting the full story.
Sometimes, sources become so overly worried that they insist on anonymity even when their statements are anodyne. For example. former First Lady Barbara Bush was notoriously prickly about seeing her friends quoted in the press. A colleague of mine was profiling her and interviewed a pal who insisted on anonymity. Her quote? "She is a wonderful mother."
In those cases it is best to cut the anonymous quote, as it adds nothing of value to the story. Similarly, a denigrating, anonymous quote would also, according to Times standards, be excised.
The employer’s interest is completely absence from the answer. We’re told that “A journalist's job is to dig, expose secrets (as long as they matter). . .” But why should the New York Times facilitate the misappropriation of information when the employer would be well within its rights to discipline the employee for leaking the information?
Abramson correctly says: "Many sources now fear that their supervisor will see unsanctioned remarks in the press." But she ignores whether the source fears legitimate or illigitmate employer punishment. Look for example at this use of an anonymous source that just ran in the New York Times.
Writers and producers for the ABC hit “Grey’s Anatomy” are fuming after one of the show’s stars, Katherine Heigl, said this week that she had opted out of the Emmy race this year because she was not given good enough material to work with last season.
The only new news in the story is about the writers' and producers' anger:
Two people involved in the production of the show said that the program’s writers and producers were angered by what they considered a slap by Ms. Heigl at the people in the writers’ room. The people spoke on the condition of anonymity, which was granted because they have been involved in discussions with the program’s top executives about the situation but were not authorized to speak on behalf of the series.
An employer should be able to punish employees for disclosing this information. The source in this situation wants anonymity in order to avoid legitimate punishment. At a minimum, the Times should go further and say more about the kind of untoward consequences that would be visited on a source, if the source's identity was made public.
Abramson misses the point when she restates the question: as “whether a source is wholesome or unwholesome.” I took the question instead to be whether it was unwholesome for the New York Times to trade in misappropriate information.
The proposed standard that the information adds “an important dimension to an article” seems to be code words for almost anything goes. Does the "anger" of writers and producers really meet this standard? Shouldn’t the standard for publication be somewhat higher for misappropriated information than for non-misappropriated information? (And a simple definition of “misappropriated” is if the employer could legitimately discipline you for the unauthorized disclosure.)
The only place where newspapers take the employers’ perspective seriously is where they are themselves the employers. If a typesetter for the Washington Post came forward a decade ago and on condition of anonymity revealed to the New York Times the identity of “Deep Throat,” I conjecture that the Times would judge it inappropriate to facilitate the disclosure of information. It would reason that the Post had a legitimate interest in keeping the source non-public. Posted
by Ian Ayres [link]
"An employer should be able to punish employees for disclosing [gossip about writers being angry at a TV star]."
Also, while Abramson gives lip service to the fact that a lot of the stuff that anonymous sources are relied on for is unimportant, that really is the whole ballgame.
The media is playing a bait-and-switch, relying on cases like Watergate where you really couldn't report an important story without unnamed sources, to justify the use of unnamed sources for unimportant snark, gossip, touches of authenticity, etc., in stories of no importance.
There's no great reason why anonymity should be granted except in cases where real, important news is being reported.
A bit of devil's advocacy here. Abramson does indirectly address employer interest when she avers, "It is crucial to understand how the terrain for reporting has changed. Within government at all levels and in the business world there has been a culture of far greater secrecy." If business has become more adept at manipulating the press, then perhaps it's fair for the press to push back. What's unwholesome for the goose, etc. (Yes, she does miss the point in Scalpone's query.)
A standard of "importance" vis-à-vis a television series is surely exceedingly low, and anger among the ranks meets it, I imagine. But what information in this context has been misappropriated? The anonymous sources "were not authorized to speak on behalf of the series" (my emphasis). Were they even doing so? Or were they not speaking each on his or her own behalf?
Spoken like somebody who doesn't have a regular job. Employers have been unilaterally tightening the terms of employment with regard to discussion of facts and opinions arising from facts discovered in the course of one's employment. At this point, the typical employment policy is that only people particularly authorized to speak on a subject may do so, even when an employee knows that the authorized spokesman is lying. For this reason, employees seeking to correct the record must request anonymity.
In the government employment context, not only is the government asserting (with the support of the Supreme Court) the prerogatives of a private employer, but the Bush Administration has created a new category of non-public information -- information which according to its definition is disclosable under the Freedom of Information Act, but about which government employees and contractors are not permitted to talk. In the past, the practice was that any publicly disclosable government documents could be discussed any place, any time. This is another area where requests for anonymity are necessary.
The Bush Administration limitation on speech by government employee applies even to those who testify before Congress. Civil servants testifying before Congress are instructed by White House congressional liason staff about how they are to present the subject matter of their testimony and what areas they cannot speak of unless directly asked. So it has become necessary to leak anonymously to Congressional staff what questions they have to ask to get the information to which they are entitled.
In order not to have to pay overtime, companies have to claim a wide range of professionals as confidential employees, persons who supposedly have discretion about what they do with information acquired on the job. But then the companies turn around and expect these same professionals to parrot the company line regardless of its truth or morality. Maybe if they paid us as much as a banker, we could be accused of having sold our souls. But we have only sold our labor and our talent.
I don't want a responsible press. I won't an irresponsible press [mostly] within the bounds of law. I don't want my lawyer to be objective and neutral, I want him biased within the bounds of sanity and common sense. If the entertainment press were as "serious and responsible" as the political press, nobody would read it. And if the political press were as "un-serious and irresponsible" as the entertainment press we wouldn't be in Iraq. The professionalization of the press has done more harm than good. In the UK journalists still call themselves hacks. Journalism is an unwholesome business. Reporters knock on widows doors and take photos of children whose parents have just been shot, How the fuck is that wholesome? You miss the point of journalism and law in a democracy Mr Ayres. Vulgarity is necessary. That's not "the new way to be smart" it's the old way.