|
<advertisement>
|
 |
 
|
|
media search: |
 |
Essay
by Mike Hoyt (mh151@columbia.edu) is CJR's senior editor.
"Gallagher induced and encouraged, and aided and abetted certain past or present Chiquita employees - identified herein as DOES 1-3 - in helping him to steal Chiquita's proprietary business information and property by providing him with stolen documents and the know-how to illegally access Chiquita's voice-mail system."
from Chiquita Brands International, Inc. v. Michael Gallagher
Knock off that last phrase - the bit about illegally accessed voice mail - and you have an attempt at a legal argument against a pillar of investigative reporting. Imagine the sentence rewritten this way: Sheehan induced and encouraged, and aided and abetted certain past or present government employees in helping him to steal top-secret government information and property by providing him with stolen documents . . . .
Sheehan could be Neil Sheehan and Doe #1 could be Daniel Ellsberg, who helped produce the ultra-sensitive history of the war in Vietnam known as the Pentagon Papers, then later snuck a copy of the 7,000-page document, one briefcaseful at a time, to a photocopy machine. Ellsberg had probably been advised that he could be charged with espionage for this, according to David Rudenstine's 1996 book about the case, The Day the Presses Stopped (cjr, July/August 1996). Nonetheless, he made the papers available to Sheehan, then of The New York Times, and the rest is history.
Reporters have been "aiding and abetting" sources in the leakage of information and documents - a percentage of which the investigative targets might argue were "stolen" - since they learned to read upside down. For more than a century, too, reporters have been obtaining information by means of deception. Back in 1887, Nellie Bly of The New York World feigned mental illness to get inside an asylum and write a series that was headlined: inside the madhouse/ nelly bly's experience in the blackwell's island asylum/ continuation of the story of ten days with lunatics/ how the city's unfortunate wards are fed and treated/ the terrors of cold baths and cruel, unsympathetic nurses/ attendants who harass and abuse patients and laugh at their miseries.
The series resulted in a higher budget for the asylum and improved conditions for the unfortunates inside it. In our own time, reporters have pretended, among other things, to be pregnant (Chicago Sun-Times, 1978, in order to investigate a corrupt abortion clinic); to be looking for housing (The Miami Herald, 1985, and other papers, to investigate racial steering); to have cancer (60 Minutes, 1978, to investigate a phony "cure"); to be a high school student (The Albuquerque Tribune, 1983, to see a school from inside). As recently as 1994 and 1995, reporters from Ms. magazine and The Wall Street Journal took temporary jobs in order to secretly investigate working conditions at, respectively, a sweat shop and a chicken-processing plant. The Journal's effort was blessed with a Pulitzer for National Reporting.
Journalists have often crossed certain ethical boundaries in pursuit of stories that they judged worth the trip. But where is the line in the sand? Secretly listening to corporate voice mail is certainly an unusual piece of enterprise. The big mess in Cincinnati gives us reason to think about just what should be our guiding lights when we make these means-and-ends calculations. Here's a starter kit:
Did Mike Gallagher commit a crime? If a source broke into Chiquita's voice-mail system and gave tapes to him - as Gallagher reportedly told his editor but the editor now doubts - he's probably in the clear. The courts have traditionally given the press wide leeway to use information from a source even if it were gathered illegally. (This was reinforced in late July when a federal judge tossed out a suit that was a step removed from the press. Republican Congressman John Boehner sued Democrat Jim McDermott after McDermott gave copies of a tape of a private GOP strategy session - illegally recorded by somebody else off a cell phone - to the news media. The right to privacy is a high priority, the judge reasoned, but not so high "that it can trump the defendant's First Amendment rights" to dispense the information.)
But if Gallagher did his own recording - as Chiquita claims - he almost certainly violated federal wiretapping law, according to several experts. A criminal investigation of his reporting methods is under way, along with Chiquita's blunderbuss defamation suit against him.
But if it's all right to use voice mails that were given to you by a source, what's wrong with dialing them up yourself? There has to be a line somewhere between privacy and the First Amendment. The law matters. Authenticity can't be our only criteria for using information. And the notion of reporters granting themselves a license to wiretap is frightening.
Okay. But what if the series wasn't about offenses in third world countries, and the target wasn't a company with armies of lawyers. What if, say, Gallagher hacked into a drug dealer's voice mail and uncovered a plan to sell crack in Cincinnati's high schools. Would anybody care about the means?
Good question. Some purists, probably. Gallagher might end up a hero. The law is not our only light. And shouldn't be.
Suppose for a moment that Gallagher did break in to Chiquita's system. What damage did he do to the rest of us? Those who would repress investigative reporting are increasingly focusing on controversial newsgathering techniques, as in the PrimeTime Live/Food Lion case (cjr, March/April 1997) or the Dateline vs. truckers case (see page 71). Gallagher hands them a large club, at least in public relations terms: How can we examine other people's ethics if we are seen as abandoning our own? We can do these stories without breaking laws.
Supposing again that he did it: What other options did the Enquirer have, and Gannett, other than to cave?
Keep in mind that the Enquirer feels that - for reasons the editor and publisher won't explain - their lead reporter was not honest with them about how he obtained information. That certainly affects how they view his story. But keep in mind too that to a large degree the series rests not on voice mail but traditional reporting - documents, interviews, observations - by Gallagher and his co-author. And that, meanwhile, no one has challenged the authenticity of the voice mails. And that, according to The Wall Street Journal, the series was vetted not only in Cincinnati, but by Gannett's in-house lawyers in Arlington, Virginia, its white-shoe outside law firm of Nixon, Hargrave, Devans & Doyle, and by Philip Currie, its vice president for news. Chiquita's complaints about fairness notwithstanding, it's hard to believe the stories are riddled with errors.
I put the question to Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. "I am never going to concede that a news organization has a duty not to publish something that came into its hands in a questionable way," she said. "What does questionable mean, and how questionable is too questionable?
"I remain sort of mystified, given how much play the Enquirer gave this story, that they backed off it so completely," she continued. "If Gallagher had been given fake voice mails, or even ambiguous ones, it would be different, but we're not talking about that."
One option, she said, would have been to declare "'We repudiate the conduct but not the story.' This case poses a moral problem on more than one level. One problem might be, How do you deal with a reporter who went into voice mail? But then there's another: What about the moral obligation to publish truthful and accurate information?"
Where does all this leave the Enquirer's readers?
Nowhere. In the dark. First, an eighteen-page, loudly-trumpeted investigative report on a huge Cincinnati player. Then a thrice-printed front-page apology - ambiguous, badly written, and reeking of lawyers - which suggests that the series created "a false and misleading impression of Chiquita's business practices."
But which impression? The bribery? The environmental recklessness? The creation of front companies to evade Central American property and labor laws? The bullying of segments of Chiquita's work force? The newspaper won't say.
What could the Enquirer do now?
One option might be to pull a CNN and submit the whole mess to a Floyd Abrams type (or better yet, an eminent journalist), for an eventual report and public discussion. Or, like The Washington Post after the Janet Cooke affair, it could prepare a brave, detailed, spare-no-punches self-examination that both sorts out the the series and explains just what it thinks went wrong in the reporting and editing. This might go a long way toward lifting the pall off a somber newsroom in Cincinnati and addressing serious journalistic questions that go well beyond that city.
***
related story: Banana Peel
