Is Disclosing Medical Records an Unhealthy Reporting Method?

First published on  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 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.


The Secret to Avoiding a Mess? No Secrets

The announcement of a new structure for Auburn’s student media has created an outcry, particularly among staff and readers, current and former, of The Auburn Plainsman student newspaper.

Rather than talk this through 140 characters at a time, I’ll address the situation through my blog.  It’s not sports, but as a former Plainsman editor (1977-78), it’s close to my heart.

Two broad points to make: 1) The new plan is not a disastrous structure for The Plainsman or any student medium. 2) The Division of Student Affairs should have been more open and inclusive in the process that arrived at this new structure.

First point.  Auburn student media should be merged under one umbrella.  It has been talked about for years, even before an external review recommended it in 2010.

Universities across the country organized student media this way.  It recognizes the media’s move toward multi-platform reporting, it unifies advertising sales strategies, it eliminates redundancy of role, and it has the potential to save equipment money and better utilize office space.

That all student media would be under Student Affairs authority is again, neither unique nor dangerous.  Student media operate under a variety of administrative situations: student affairs, journalism academic units and (probably the worst) a university’s public relations office.  Some are totally independent and operate off-campus.

My one strong recommendation for Auburn’s structure, however, is that the four advisers to be hired (editorial, broadcast, technical and sales) not all report to the Office of Communication and Marketing within the Division of Student Affairs.  That creates an inefficient horizontal organizational structure and concentrates authority in the wrong position.

I strongly recommend that one of the four advisers be designated the director of student media, with day-to-day authority over his/her specific area, and be placed directly under the vice president for student affairs, Dr. Bobby Woodard.

Nothing against anyone who works under Dr. Woodard, but Student Media needs its own strong voice and it needs to be someone who works on the Student Center first floor, with student media.  That would give all student media the leadership and protection it needs and deserves.

Now, on to point 2.  The way this restructure was devised and planned was as bad as everyone is saying it is.  That Student Affairs devised it with no input from the students involved created the majority of the problems you see here.

Woodard claimed that the students were excluded because it involved private personnel decisions.  But students have served on personnel search committees in the past, and have observed the confidentiality of the situation.  I believe that Student Affairs, ironically, sold students short in this process.

But why not take it further? Why not openly discuss and devise this new structure?  Why all the secrecy anyway?  It always mystifies me that universities, with all of their theories of academic freedom and open discussion, revert to secrecy in practice, whenever an important decision looms.

I realize that personnel changes would occur, and that individuals could face drastic job changes.  These people are my friends too, and I respect what they bring to their work.  But as we’ve seen, the pain created was only made worse by the process used.

I honestly feel that the Division of Student Affairs leadership, including Dr. Woodard, owes the students an apology because of the mess that their approach created.  They can pledge more openness in the future, but whether they follow through on that pledge remains to be seen.

If the Division of Student Affairs claims to have such faith in the quality of students at Auburn, and such a commitment to their growth, maybe they should demonstrate it by including them in such important decisions.  It is counter-intuitive that they chose not to, in this case.

In closing, I recognize that Auburn student media will survive this, and with wise personnel decisions for the four advisers (including student participation in the search process), I think that all of the projects — The Plainsman, the Glom, Eagle Eye, WEGL and the Circle — will turn out the better for it.  And some loyalty toward the people who have served these projects faithfully is definitely appropriate and honorable.

As a result, all of the students who participate, whether School of Communication and Journalism majors or not, will have an experience that will help them, whatever profession they enter.

Update, April 3, 6:20 p.m.: I have accepted an offer to serve on the search committee for the editorial student media adviser.  I have been assured that students will serve on all search committees.  I would not have accepted if that were not the case.

But for goodness sake, Student Affairs: If you’re going to continue to oversee any kind of media project, do it in a way that respects the openness that the First Amendment protects, and under which our students will learn and work best.

No Defense for the First Amendment

The news media of Alabama — particularly the Alabama Media Group/ — shamed itself by not defending the First Amendment against its assault by a Shelby County judge.

Granted, the case is as bizarre as the behavior of the blogger involved.  But First Amendment cases are a matter of principle, regardless of the individual whose rights are attacked.  It is not up to the courts — nor the news media — to determine who deserves First Amendment protection.  Freedom of the press is a right of the people, not the news media.

When acting Shelby County Circuit Judge Claud Neilson issued an injunction preventing Legal Schnauzer blogger Roger Shuler from writing about an alleged affair between a former governor’s son and a Republican lobbyist, that was unconstitutional and the state’s news media should have responded quickly.

The injunction was issued before Oct. 3, when Shuler said he was served with the order, and he was arrested on Wednesday, Oct. 23, for violating it.  The Reporters Committee for Freedom of the Press wrote about it on Friday, Oct. 25.

But where were the “leading” news sites of Alabama when all this was going on?  Absent and silent.  The RCFP (a respected media rights watchdog group) reported it, and other bloggers expressed outrage, but a Google News search for four days after the RCFP report turned up nothing else.

Finally, on Tuesday, Oct. 29, the Alabama Media Group posted a story about the case.  It was well reported and included the constitutional controversy, but that was as far as it went.  No editorial opposition or further comment.  AMG, which includes three of the biggest and most distinguished newspapers in the state — the Birmingham NewsMobile Press-Register and Huntsville Times — has allowed this story to die along with Shuler’s First Amendment rights.

(Note: Daily visits to the search page for “Shuler” produced nothing until the Oct. 29 article.  A more recent search referred to an article under “Clay, AL community news” on Oct. 28, and one under “Pelham local impact” on Oct. 25.  However, both articles share the heading used by the Oct. 29 article, and a link to those pages does not show an article on the day in question, so I am taking that for a glitch.)

Other state newspapers do not fare well, either.  Neither the Montgomery Advertiser nor the Tuscaloosa News have reported or commented on this.  Even the Shelby County Reporter, a lively community newspaper that covers Neilson’s court, did not post an article until Oct. 29.

This silence by the state’s newspapers is deplorable and sets a poor example for the next generation of journalists.  The political motivations of Judge Neilson’s actions — granting an unconstitutional prior restraint to Bob Riley Jr., the former governor’s son — are apparent.

In a state like Alabama, where political dirty tricks and insider networks poison state politics, it’s even more scary.  When shady state political leaders see something like this happening, with no legal or media response, you wonder if they consider this another trick to add to the bag in dealing with critics and opponents.

People argue that Shuler’s actions in flaunting a judge’s order deserve arrest and imprisonment, but that misses the point.  The restraining order that created this circus should not have been issued, period.

The traditional recourse for someone like Riley Jr. is to sue Shuler for libel.  If Shuler is the journalistic disaster he claims, Riley can sue him and add financial bankruptcy to the ethical bankruptcy he alleges concerning Shuler.

That is the correct remedy, not issuing restraining orders before things are written.  Such judicial overreach creates a “chilling effect” on public debate that certainly is convenient for state politicians, but defies decades of Supreme Court precedent.  You blew it, Judge Neilson.

And until the state’s newspapers step forward and do their part to defend the First Amendment that protects their right to publish, they are just as complicit by their silence.

In an Internet age, where the speed of news transmission and the breadth of news contributors have both exploded, all journalists must hold on to such enduring foundational treasures against all threats.  It is our duty.