Is Disclosing Medical Records an Unhealthy Reporting Method?

First published on al.com.  Click here.

Note: This column includes implied obscenity in a tweet presented later in the article.

To anyone who doesn’t know, ESPN NFL reporter Adam Schefter caused quite the ethical dust-up when he ran a tweet showing Jason Pierre-Paul’s medical records.

To quickly dismiss one objection: no, Schefter did not break the law.  He did not violate the Health Insurance Portability and Accountability Act (“HIPAA”) by showing it.  The medical professional who leaked the info to Schefter did.

Schefter is not in legal hot water for disclosing information, even if someone else obtained illegally.  The Supreme Court decided that in Bartnicki v. Vopper, where a radio station played illegally wiretapped conversation between teachers union officials during tense negotiations in Wilkes Barre, Pa.

The court found “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”  Schefter operates under the same shield.

That might sound like the equivalent of accepting stolen property and getting away with it, but the Supreme Court treats news-related information differently.

But law does not equal ethics.  The question is, did Schefter violate journalistic ethics here?  As with many such questions, the answer is determined by where you stand on ethics.  There is, however, another issue here, a constant with ESPN: ethical transparency.

Many argue that Schefter should have declined to show Pierre-Paul’s medical records and merely reported the information, anonymously sourced.  Showing an individual’s private medical information crossed a line, to them.

What is troubling to me — and always has troubled me — is that ESPN ignored its commitment, as a news media organization, to be transparent about this ethical decision.  I watched Schefter’s live report on ESPN SportsCenter.  It was all news, zero reflection.

In its September 2014 revision to its code of ethics, less than a year ago, the Society of Professional Journalists added the words “and transparent” to its fourth major standard, “be accountable.”

The resulting exhortation, “Be Accountable and Transparent,” includes the following sentences of explanation and application: “Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public. … Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content.”

As I write this blog, ESPN has not done this and certainly did not choose to do this early in its reporting.  It could have been handled so simply — with two or three sentences of explanation by Schefter.  But for whatever reason, Schefter and his producers decided not to take the time, even with the existence of ethical disagreement within the profession and the audience.

I wrote about this in al.com a couple of years ago — regarding Joe Schad’s reporting of alleged autograph selling by Johnny Manziel.  It is sad to see that apparently nothing has changed.

Don’t expect to hear from ESPN on this through its ombudsman blog.  The network has not updated the blog since Dec. 3, 2014, when Robert Lipsyte ended an excellent stint.  It is a sad, and telling, omission.

So where does it go from here? Nowhere?  Maybe not.

I see another layer to this debate, and it relates to Schefter’s relationship with his anonymous sources within the league.  Note the following tweet by former Steeler James Harrison:

Apologies for Harrison’s language, but it does raise the question: How will Schefter’s sources within the league respond to this?  One reason a journalist never breaks a pledge to an anonymous source, even risking imprisonment, is because of the damage it would cause to other source relationships, and these are an investigative journalist’s lifeblood.

It will be interesting to see if Schefter gets any pushback from his sources — players, agents or team officials — because of this.  Players might punish him for damaging an unsigned colleague’s negotiating power.  Agents and team officials might be more likely to look the other way.

All of these considerations weigh in to a serious ethical discussion in a matter like this.  And as the SPJ code encourages, and ESPN once again ignored, it’s best to include your audience in that ethical discussion.

John Carvalho is an associate professor of journalism at Auburn University.  A former sports journalist himself, he discusses sports media issues at @John_P_Carvalho.

 

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Auburn President Dr. William L. Broun: No Heritage of Hate

BrounWith the renewed focus on the Confederate battle flag and what it symbolizes, schools and other public institutions in the South are also taking a look at their history.  Do colleges and universities, building a tradition of instilling the highest values, harbor in their past individuals who worked against principles of equality?  Do they honor these individuals by naming buildings after them?

Clemson is facing such a debate over the legacy of Benjamin Tillman. Faculty have demanded a building named after him be renamed, particularly in light of the recent calls to remove the Confederate battle flag from the state capitol grounds.

It’s a valid debate, and the answer is rarely simple — 100 percent in one direction or the other.  But it doesn’t hurt to ask.

Take, for example, Auburn’s fourth president, Dr. William L. Broun, whom Broun Hall is named after.  Before coming to Auburn, the Virginia native fought in the Civil War.  Should Auburn be concerned?  It’s a valid question.  Let’s read the evidence.

A graduate of the University of Virginia, Broun was actually headmaster of a private school in the state when war broke out.  He did not serve in a combat position, but was superintendent of ordnance for the CSA army, at the rank of major.  He was later promoted to lieutenant colonel and named commandant of the Richmond arsenal.

Some war historians claim that Broun issued the last major command of the conflict — the order to blow up the arsenal before advancing armies could arrive, shortly before Lee’s surrender.

But what about Broun’s attitudes toward issues like slavery?  Did his views reflect the region’s racial hatred of Reconstruction and the Jim Crow era?

We are fortunate that the library has a book of Broun’s life and words, assembled by his family after his death, on its shelves.  It’s an excellent starting point (and saves the hassle of going through his papers).  The book is titled “Dr. William L. Broun,” and its call number is LA2317 .B7A3.

Broun did in fact speak about the Civil War, on Memorial Day in 1891.  In recalling the discussions leading up to the war, Broun reminded his listeners of the personal turmoil he and members of the UVA community faced.  Theirs was the legacy of Thomas Jefferson and James Madison, in intellect and politics.

Broun told his audience, “Slavery was not the cause of the war; it was the occasion, not the cause.  It was not for silver and gold, not for slavery, not for property in any form, that your fathers suffered the hardships of four long years of war.”

He claimed, as many have since then, that the cause was “to maintain what they regarded the rights of the States.”

Broun did not leave it there, however.  Later in his speech, he declared, “But in the wisdom of an omniscient Providence the question of the right of secession, thus referred to the arbitration of the field, was decided amid the thunders of artillery irrevocably and forever.”

In his opinion, the United States would continue as a sovereign unified country —
one people, one nation, under one flag.”

So while Broun would seem to side with those who sidestep the slavery issue, he definitely saw secession as a dead issue, post-war.  But did Broun have personal experience with slaveholding?

Broun and his father-in-law, Dr. George Fleming, bought a plantation in Houston County, Virginia, during the war, and Broun moved his family there.  Apparently Dr. Fleming was a slaveowner, and his slaves were sent to the plantation.

“When my wife reached there she found the old servants that knew her well, and they were all glad to see her,” Broun wrote.  “They regarded us as their protectors after the war was over, and I hired them for the next year, preparatory to planting cotton.”

While these can still be problematic words to some, they are certainly preferable to the racial hostility expressed in the late 1800s and early 1900s by Alabama politicians, some of whom have buildings named after them.

Beyond that, nothing of Broun’s that is included in the book — in correspondent or memoir form — addresses race-related topics.  He does show a progressive spirit, advocating for the education of women at Auburn during one non-dated baccalaureate address and does so without condescension.

Broun’s most enduring and visible contribution to the campus is the reconstructed Samford Hall, which was built after its predecessor burned in 1887.  He also was behind the renaming of the University from Alabama Agricultural and Mechanical to Alabama Polytechnic Institute.

But his most important contribution might have been his role, as one of the South’s most respected educators, in building Auburn’s academic reputation.  When he died in 1902 at age 72 — while getting ready to go to work — colleagues and journalists hailed his life and work.

In discussing Broun’s life, it must be acknowledged that other building namesakes do not fare as well, on balance, particularly those named after Alabama governors.

The racist speeches of Gov. B.B. Comer (1907-1911), for whom Comer Hall is named, are easily found, as is his family’s usage of leased convict labor — an inhumane system that he perpetuated as governor.

And Gov. David Bibb Graves (1927-1931, 1935-1939), for whom Graves Amphitheatre is named, though progressive in his philosophy, used his Klan leadership to political advantage and blocked his attorney general from prosecuting floggers, though he resigned his Klan membership soon after he was elected governor.

But their legacies deserve a deeper treatment, and they are not as closely tied to Auburn as Broun was.

When Dr. William L. Broun’s life and legacy are examined, it’s wrong to categorize him with the Benjamin Tillmans.  True, he was in many ways a product of his times, but his times — and Auburn — were better because of him.