In the chronicles of journalism, Monday was a day to remember, as Politico reporters Josh Gerstein and Alexander Ward broke a story from behind the hallowed and seldom breached walls of the U.S. Supreme Court. The pair disclosed what has been confirmed as a leaked majority court opinion draft that would reverse Roe v. Wade in favor of state laws.
While most of the country is focused on a possible sea change of U.S. abortion law, ethicists and journalism professors are focused on the basic reporter’s questions of “who,” “what,” “why,” “where” and “how” Gerstein, Ward and Politco’s editors came to make such a disclosure.
At the heart of the discussions are six questions, particularly punctuated by Politico’s troubling lack of transparency and accountability for its actions.
Was it legal and ethical for someone to obtain and leak the document to Politico?
From the Supreme Court’s point of view, it was a “singular and egregious” breach of trust, as Chief Justice John Roberts said in a statement on Tuesday. Roberts said that the document did not represent a final decision. An investigation is underway about the source of the leak, and what comes of that remains to be seen. It also remains to be seen if any legal authority can compel Politico to reveal its source. That’s highly unlikely in this case.
Was it illegal for Politico journalists to publish a document leaked to them?
No, probably not, particularly if Politico reporters did not steal the document or obtain it through other illegal means. First Amendment case law protects such publication even of “ill-gotten” information. Ethically, there’s another dimension to this question.
What is legal and what is ethical are not necessarily interchangeable. In fact, journalists may legally obtain information but decide to not publish or air it if they determine the information will cause harm. In simple terms, just because a journalist can get a document doesn’t automatically justify its publication, especially if it might invade personal privacy, harm a criminal investigation or national security, or unduly promote an anonymous source with an ax to grind.
Politico said “a person familiar with the court’s proceedings” provided the document and helped authenticate it, but didn’t elaborate. After Roberts confirmed the document’s authenticity Tuesday, Politico was off the hook to show it verified the document, but questions still remain.
Was it ethical for Politico to release the draft?
This will be the central question included in future media ethics textbooks and debated for years to come. For most journalists, this will be heralded as a “scoop of the year,” if not of the decade. Gerstein and Ward are likely to win awards. At the heart of that debate about this episode will be the fourth and fifth ethical questions
Did Politico act “independently” and did the disclosure serve the public good?
The answer to the independence question is affirmative, but whether the document’s release is serving the public may depend on which side of the abortion debate one stands. Utah Sens. Mitt Romney and Mike Lee said the leak hurt the Supreme Court while Sen. Charles Schumer, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., appeared to welcome disclosure as a window on actions of rival Republicans. The disclosure has further politicized the Supreme Court’s deliberative process and may have historic long-term effects on judicial decision making.
To be sure, Politico presents its role in the whole affair as a neutral messenger without culpability. The Gerstein-Ward story says the following without a mention of the Politico action, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”
According to The New York Times, Politico editor-in-chief Matt Kaminski and executive editor Dafna Linzer sent a note to staff Monday night that said, in part, “This unprecedented view into the justices’ deliberations is plainly news of great public interest. We take our responsibilities to our readers and our publication with the greatest seriousness. Our obligation, as protected by the First Amendment, is to report the news and inform our audience. Our journalism speaks for itself, and that’s not different here.”
Has Politico really come to terms with journalists’ obligation to accountability and transparency?
Unfortunately, those are all platitudes when faced with the fifth question. The Society of Professional Journalists’ ethics code says, “Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public. Journalists should explain ethical choices and processes to audiences.”
Politico’s brief explanation is unconvincing, perhaps even offensive. Especially, when that’s combined with the arrogance to hide behind the First Amendment while sharing no concrete reasons for disclosure. Journalists do not operate in a vacuum. Their decisions have real consequences and have the power to hurt or help democratic institutions. Therefore, it is not just a question of journalists exercising “rights,” but reporters and editors must include in their calculus the impact on democratic institutions.
The Poynter Institute, a journalism think tank and training center, suggests 10 questions when making decisions: “What are my ethical concerns? What is my journalistic purpose? What organizational policies and professional guidelines should I consider? How can I include other people, with different perspectives and diverse ideas, in the decision-making process? What are the possible consequences of my actions? Short term? Long term? What are my alternatives to maximize my truth-telling responsibility and minimize harm?”
There is no public evidence that Politico editors engaged in any of these questions or invited diverse perspectives. To be fair, Politico staff may have had these discussions, but they have refused to talk more about their decisions when asked by media reporters. At the very least, if Politico reporters and editors did engage in such discussions, they should share that content with the public.
What effect will this rare leak have on the integrity of and confidence in the Supreme Court process?
Courts should be isolated from the public frenzy (that is now emerging) and base decisions on sound legal principles. Chief Justice Roberts said the leak will not harm the process, but it is already harming public confidence in the court. How does Politico balance such potential harm with its journalistic purpose? Poynter’s Kelly McBride has written about similar concerns.
Were such arguments considered, or did Politico run to the “scoop” without considering any other factor than “being first” or “beating the competition?” Were there political motivations? Was the possible harm to the judicial process and public confidence weighed? In a country where the “free press” has a right to publish controversial documents, it must also balance such actions with responsible accountability and transparency.
The Politico editors made the wrong call both with timing the release and positioning itself as a benign messenger. The document was real. The information is of compelling public interest. It allows for public debate in an important election year for Congress. However, nothing was gained by releasing the information now rather than waiting until a final decision. Politico needs to own up to the fact that it helped undermine the court process and inflame public sentiment.
Was there harm to democratic institutions including the “Fourth Estate” — the news media? Probably.
Joel Campbell is an associate professor in the BYU School of Communications. He teaches media ethics courses, researches First Amendment issues and is a former reporter and editor at the Deseret News. He is a member of the Utah Supreme Court Ethics and Discipline Committee. His views do not represent BYU. Twitter: @joelstoryideas