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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The Pre-Main Event at Mayweather-Pacquiao? Media vs. PR

Even before the undercard had started at the “Fight of the Century,” a nasty dispute ensued, with Rachel Nichols of CNN and Michelle Beadle of ESPN squaring off against the Mayweather camp, particularly his publicist, Kelly Swanson.

The basics were that Nichols and Beadle said they were told they had been denied credentials.  Amidst the outrage that ensued, Swanson emerged claiming that they had indeed been issued credentials and that their claims to the contrary were false.

You can get details on the actual conflict in this account by Richard Deitsch of SI.com.  But let’s also think about what this tells us about the professional practice of public relations — as demonstrated by Swanson and, in contrast, how it should be done.

Although she is considered one of the most powerful people in boxing, male or female, most non-boxing fans would not be familiar with her.  This profile from the Buffalo News might have given journalists more hope about how she would have handled the situation with Nichols and Beadle.

Conflict and Credibility

At one point, the conflict was a debate between Nichols and Swanson about whether indeed Nichols’ credential had been pulled.  Swanson claimed otherwise, as this transcript from a USA Today interview shows (apologies for the muddy screen capture):

Screen Shot 2015-05-03 at 3.14.52 PM

But Nichols brings some credibility to the table on this.  Many in the audience — and I daresay most in the profession — would be inclined to accept Nichols’ version of events.

If the person involved were Geraldo Rivera or Clay Travis, then of course their claims would be greeted with some skepticism, given their reputation for self-serving promotional scams.  But Nichols has earned more respect than that.

Some PR folks also have a reputation for credibility, maintained under fire.  One close-to-home example is Kirk Sampson, long-time SID at Auburn.  Even during the height of the flames in the Cam Newton controversy during the 2010 season, Sampson cemented his reputation for respectful, ethical professional behavior, as this Deadspin report pointed out.

Some reporters were as skeptical toward Auburn as Nichols and others were toward Mayweather’s treatment of women.  But Sampson maintained a level head and afforded courteous treatment to all requests.

Entertainer or Journalist?

It was a side issue, but some wondered whether Beadle deserved the same treatment as Nichols, because Beadle has a different reputation within the media.

But that is another mark of a professional public relations practitioner — equal respectful treatment of all in the media.  You might not have enough seats on press row for everyone, but you have an unlimited amount of respect and courtesy to show each media member.

In this case, it is a false distinction to think that Beadle should be accorded less courtesy than Nichols because Beadle is a host of an ESPN2 program rather than a reporter for CNN.  Given the available facilities, Beadle deserved better treatment.

Of course there is going to be a “pecking order” for media attention; sports figures have only so much time available for the media, especially during the season.  But the most respected media relations folks do everything they can even for smaller media outlets.  It gets tricky with the emergence of blogs and podcasts, requiring even more media savvy by the public relations folks.  But they understand that as part of their job.

Never Lie for a Client

The above Buffalo News feature notwithstanding, Swanson definitely lost credibility.  Her account, as described above, simply does not ring true.  At once, she acknowledges that Nichols got bad information, then seems to discount its importance.

It would be more appropriate for Swanson to acknowledge the misunderstanding or miscommunication, and then to go the extra mile to make sure Nichols and Beadle were accommodated.  It might have taken some phone calls and direct contact from Swanson to Nichols and Beadle, but it was her office that had created the confusion, so it was her responsibility to clear it up directly — not through Twitter or the media.

But for Swanson to claim that Nichols was always credentialed implies that Nichols was not telling the truth.  It’s difficult to imagine Nichols’ motives for lying.  She had more to gain by being at the fight as a credentialed journalist than leaving, indignant and jilted.

Given that Mayweather and Swanson were not pleased with Nichols’ grilling of the fighter during an earlier interview, the situation came off as payback, draining believability from Swanson’s explanation even further.

My master’s degree was in public relations, and my last job before I started teaching was as a public relations director for Azusa Pacific University, a private liberal arts university in Southern California, in the early 1990s.

My policy was always that I would never lie.  As the person who submitted the statistics for the U.S. News and World Report’s college rankings, I never “cooked” the numbers.

It’s not a PR professional’s role to do the media’s newsgathering work for them, either.  When seven APU students were diagnosed with hepatitis, I did not contact the media to announce it.  At the same time, our office had everything in place so that when the first journalist contacted us (thank goodness none ever did), we were ready with full disclosure — a release and fact sheet, the dean of students as chief spokesperson.  We were not going to lie about it.

It’s one thing to keep internal information private, another to intentionally mislead, as Swanson seemed to do in her explanation.

No doubt Swanson is well paid for her work with Mayweather, and some superstar athletes might consider the truth to be theirs to call for their public relations folks.  But Swanson’s credibility is hers to maintain, and any public relations professional must determine with his or her perceived honesty is up for bid.

No doubt some athletes would be relieved that their publicist would go to such lengths to keep them from unpleasant questions.  If she’s looking to expand, Swanson will gain well-paying clients, impressed at her willingness to take on reporters like Nichols.

But at what price?

Shame in the Game

First published in the War Eagle Reader. You can find it here. MilesTweet

So perhaps West Virginia freshman Daxter Miles Jr. was not too smart in calling out Kentucky before their Sweet 16 game last night.

Predicting a Mountaineers victory was preferable to pre-signaling defeat. But to claim the Wildcats “don’t play hard” might have been reckless.

But the media’s post-Daxter takedown on Twitter following Kentucky’s 78-39 double-down was an unnecessary slaughter of its own kind.

Some samples:

@SportsNation: “Daxter Miles had the same amount of points as Kentucky has losses. None.”

@JimRome: “36-1? Maybe Daxter meant the score.”

@darrenrovell: “Daxter Miles Jr., who said West Virginia would beat Kentucky tonight, finishes with ZERO points for the Mountaineers.”`

@BasketballPics: “Y’all misinterpreted Daxter Miles; He said ‘Kentucky would have a 36-1 run.'”

Reports emerged that Miles “hid” in a bathroom stall and had to be coaxed out to face the media, and the laughs grew louder.  (Hey, Dax: For future reference, when the pros hide from the press, they use the training room.)

And just as predictably, when Kentucky player Devin Booker tweeted “36 and WON” postgame, the rout was on off the court as well.

At this point, of course, I should qualify that the shaming was by no means unanimous and many media members either defended Miles’ expression of confidence or at least condemned the over-reaction to it.

Still, one of the most curious unintended consequences of Twitter is its enabling of mass shaming.  The verbal equivalents of an embarrassing Snapchat photo descend on an unfortunate individual whose decision deserved the drop, but not the flood.

Sometimes it’s a good thing — when Twitter’s democratic muscle calls the rich and/or powerful to account.  But when the media mob attacks an 18-year-old (and the takedown continued old school, on “First Take” and the other morning talk shows), is it going too far?

My thoughts are not directed at the fans.  Fans are fans, and if they were rational — well, I shudder to think what we would watch on CBS and three cable channels this week.  The UK faithful were as savage toward Miles as would be expected.

For Auburn fans, Miles’ words reminded them of a similar situation involving Tre Mason before the 2013 Iron Bowl.  Mason expressed a confidence in facing an Alabama team that was being hailed as a juggernaut similar to this year’s UK hoops team.

Tre did not suffer the same fate.  After al.com columnist Kevin Scarbinsky took Mason to task for his comments, the snarky backlash swarmed Scarbinsky more than Mason.  And of course, Mason’s team fared better than WVU.

Still, I wonder about those tasked with covering sports.  It is bad enough that sports style has evolved into a more personal, opinion-laced style.

But throw in the snark potential of Twitter, and if there is a line out there, sports journalists often cross it. The profile plea, “Tweets are my own” are no excuse.  Readers can connect the name dot to the byline dot.

At another place and time, I would have joined in the fun — maybe not toward Miles, but certainly at a more satisfying target.  And when the culprit is a misbehaving media member, the sharper the comment, the better.

As I’ve thought it through, a recent article by Kelly McBride of the Poynter Institute provided focus and clarity.  Whether as participants or as detached observers who end up making a situation worse, journalists need to be careful around those who play with fire.

McBride concludes, “My hope is that … professional journalists will distance themselves from the shamings of private people that create very little social good, recognizing them as click bait and nothing more.  Most Internet stone throwers could be ignored.”

I would extend that standard to shaming of other public figures, including athletes, where there is no social good, only ridicule.

One reason for my re-thinking: Within the past couple of years, I had the chance to interact with a journalist who had been the object of shaming as a result of some reporting that had gone wrong.

I will be honest; I had at first participated in the flip criticisms of the reporter.  But from an outside source, I learned some mitigating details that caused me to backtrack on Twitter and to suggest critics take a second look.

From there, a mutual friend on Twitter encouraged me to contact the reporter, who was dealing with the firestorm.  So I reached out, in confidence (which is why I am being as vague as possible here).

We talked through the situation and possible remedies.  I did suggest some courses of action but was mainly there as a listening ear and an encouraging voice.

The reporter, through excellent subsequent work, has prevailed.  The firestorm is but a distant memory, and I don’t want to dredge it up here.  We DM on Twitter from time to time.  But the experience taught me, maybe more than I was able to help the reporter. No, it’s not as dramatic as those stories where a celebrity confronts a troll.

But it did have a disturbingly similar effect, reminding me that the people we snark on — whether a college basketball freshman or a well-known media member — are flesh and blood and feelings.

That, plus a desire to stand firm within the shifting sands that swirl traditional news and social media, have shaped my thinking.

As I have written before, one of my goals is to avoid being “that guy” on Twitter.  When you draw together enough “those guys,” it only gets worse.

No doubt Daxter Miles Jr. has learned his lesson and will probably do his talking on the court from now on. Sports journalists should realize that for them too, silence can be golden.

Rather than talk the talk on Twitter, they should walk the responsible walk.