Media law

The Watchdog vs. The (Baylor) Bear

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The Texas Monthly expose on Baylor and Sam Ukwuachu will produce enough troubling questions — for head coach Art Briles and Baylor associate dean Bethany McCraw in particular.

The story, or lack of it, should also trouble sports journalists.  According to reports, the assault happened in October 2013.  The Waco Police Department did not press charges and sent the case to the district attorney for evaluation.  In March 2014, the assistant DA Hilary Laborde decided to move ahead.  On June 25, 2014, a grand jury indicted Ukwuachu, and he was arrested.

This Deadspin article, great work by Diana Moskovitz, provides helpful details, including a copy of the true bill of indictment returned by the grand jury.

This is where things begin to get murky.

As Moskovitz points out, prosecutors’ choice to go the grand jury route does invite questions, because a grand jury process is, by nature and law, more secretive than a public arrest.  When an athlete, or any suspect, is arrested, the accompanying mugshots, and sometimes even “perp walks,” draw attention.

Still, in McLennan County, once someone is indicted, it is publicized.  Supposedly.

The Waco Tribune-Herald posts indictments twice a month to its website, and those indictments remain available for public viewing.  The report of June 25, 2014, indictments, when Ukwuachu was indicted, mentions more than 100 names, and five specifically mention some form of sexual abuse.

Ukwuachu’s name does not appear in this list. Why not? Was the name redacted from the list before it was given to the Waco newspaper?

According to Texas Monthly, when the requested information on Ukwuachu’s indictment and arrest, the received “a letter declaring that all information outside of the Incident Report following Doe’s visit to Hillcrest Hospital the day after her encounter with Ukwuachu was exempt from the law requiring disclosure.”

Still, if that’s the case, under what judgment was Ukwuachu’s name deleted from a public list, and not the rest?  If it’s exempt from “the law requiring disclosure,” why publicize indictments at all?  The 100-plus folks whose arrests were publicized would wish they got the same break as Ukuwuachu.

True, McLennan County DA Abelino Reyna is a 1997 graduate of Baylor Law School. With no specific response on his office’s part, however, the question remains, and is troubling.

It should also be mentioned that the prosecuting DA, LaBorde, also went to Baylor, but that did not stop her from investigating and then prosecuting Ukwuachu

I have reached out to the Waco Tribune-Herald via e-mail.  The McLennan County DA’s office (no e-mail listed) has refused all interview requests.

The first report appeared in the Tribune-Herald on Aug. 5, more than 13 months after the indictments were handed down.  The lag time invites questions, particularly related to the local newspaper’s function as a watchdog.

As any competent sports writer, college or pro, will tell you, the good reporters know how to uncover such information. Whether through strategic Web searches or well-placed sources, they know when players are arrested amazingly soon after it happens and can guide their readers through the court process.

Court-related documents are available online through databases like Scribd, as Moskovitz demonstrated in her article.

But before casting too much blame on the newspaper, realize that no reporter’s system can do everything, and an insular community like Waco is a prime culture to thwart such information gathering.  For whatever reason, the public did not learn of the announcement until twelve days before the trial itself began.

According to the Deadspin article, Judge Matt Johnson did issue a gag order, but that did not happen until Aug. 7 of this year, shortly before the trial began.

As the handling of the Ukwuachu case is discussed, concern will be directed at Baylor personnel, who admitted a player with problems at his previous school.  Dan Wolken rightly took Briles to task in a USA Today column for putting Ukwuachu’s victim, and every female at Baylor, at risk by allowing him to transfer in.

This concern relates closely to constitutional guarantees for open trials.  This right belongs not to the media, but to the public.  Community members have a right to know what is going on in matters that relate to their public safety, and it is the news media’s duty to provide that information.

When information is withheld from the public, as it was in the list of indictments published on the WacoTrib.com website, the system has failed, and citizens deserve to know how and why.

Is Disclosing Medical Records an Unhealthy Reporting Method?

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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.

 

No Defense for the First Amendment

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The news media of Alabama — particularly the Alabama Media Group/al.com — 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 News, Mobile Press-Register and Huntsville Times — has allowed this story to die along with Shuler’s First Amendment rights.

(Note: Daily visits to the al.com 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.