“Hello, CBS? Jan Crawford, please. Jan? I can’t talk too loudly because I’m on Justice Roberts’ wall…listen, I’ve got a…DAMN! Lost the signal again! That’s it, I’m dumping Sprint…”
The reverberations of Chief Justice Roberts’ surprise parsing of the Affordable Care Act continue unabated. He is, according to which pundit or analyst you read, a patriot, a fool, a traitor, a Machiavellian, a genius, a coward, a patsy or a hero. Now CBS reporter Jan Crawford has the Washington, D.C. elite chattering from their Manassas hotel rooms, where they have fled to find electricity and air conditioning, with a story that is headlined: “Roberts Switched Votes To Uphold Health Care Law.” Her story begins…
“Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold”
It is attributed to two anonymous “sources with specific knowledge of the deliberations.”
In the absence of named sources whose credibility can assessed for their own motives and reliability, Crawford’s report should be treated as no better than rumor. It is not being so treated, however. The story is headlined as fact, and the media is treating it as fact in many cases, though more responsible media sources are using the headline, “CBS: Roberts Switched Votes To Uphold Health Care Law.” Although all newspapers and legitimate news organization have ethical guidelines urging “caution,” “retraint”and “circumspection” in the use of anonymous sources to support a story, they are also addicted to them like crack. Most anonymous sources have good reasons to stay anonymous, prime among them the fact that they are breaking laws, regulations, professional ethics codes and bounds of trust by talking to reporters. Others have axes to grind and personal objectives served by planting stories. We can’t assess any of these things without knowing the identifies of the sources, and, of course, the targets of anonymous stories can’t defend themselves against ghosts.
Does this sound fair to you?
What we are left with, therefore, is the judgment, ethics and reliability of the reporter, who automatically has a conflict of interest. He or she gets big chips in the journalistic fame game for becoming Woodward and Bernstein. Combine that with the fact that the integrity of journalism has declined precipitously in the internet age, to the point where the Washington Post feels that it is fair and objective to use its front page to accuse a candidate for President and sitting governor of Texas of being a racist based solely on anonymous sources, and the value of this internal “safeguard” is exactly nothing. I have no knowledge of Jan Crawford or reason to distrust her, except that she is member of a profession that has forfeited the right to be trusted. Named sources reported by an anonymous journalist would be more trustworthy than unnamed sources reported by Crawford.
Then there is this: any source familiar enough with the deliberations of the individual justices is breaching his or her ethical obligations by speaking with a reporter. Someone who will breach one ethical stanadard, like confidentiality, is also candidate to breach others, like honesty. Who makes the calculation that the unethical source who is per se unethical by talking to the reporter, is nonetheless ethical in his or her framing of the facts? The reporter, who gets credit for the “scoop,” and whose facts and interpretations of them can’t be checked.
Oh.
I’m not impressed.
I’m especially not impressed in cases like this one, where the unethical third party presumes to tell us what an individual was thinking. This kind of testimony wouldn’t be admissible in a court of law even under oath. If Roberts told the source “I changed my mind,” it’s hearsay: the source only knows what Roberts said, not what really happened. If Roberts didn’t tell the source, then it’s speculation….at best. It could also be an outright fabrication.
You don’t think so? Prove it.
Meanwhile, all this dubious story does is cause harm. It demeans Roberts. It undermines the credibility of the Supreme Court, and the acceptance of an important decision. It allows Republicans and conservatives to convince themselves that they were cheated out a of a deserved victory on the merits, and encourages Democrats and progressives to presume that their campaign to pressure Roberts with public statements about how he had a duty to uphold the Affordable Care Act to maintain the public respect for the Court—a lie, since his duty is to follow the Constitution, not opinion polls—worked, and is thus vindicated. The Chief Justice can’t rebut the story and remain ethical, yet the story allows an unethical Justice, clerk, invisible spy or mutant fly on the wall with a reporter’s phone number and a teensy-weensy cell phone to call his integrity into question.
This is an unethical news report, the equivalent of gossip, until someone is willing to step forward, take responsibility for it, and accept the consequences.
_____________________________________
Spark: Althouse
Source: CBS
Graphic: bpase
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
Yes, I know I spelled “Irresistible” horribly wrong on the initial post. I fixed it in less than 20 seconds this time. The WordPress spellchecker doesn’t flag either the headline errors or the graphic captions. I’m afraid to check the caption—I probably spelled “wall” wrong or some damn thing. There was a period where Jeff Field, our OWS correspondent, was proofreading the posts and alerting me to typos, but I think my disdain for his compatriots alienated him. I miss you, Jeff!
There are only a handful of people who COULD have been the sources: justices, or their clerks.
Althouse makes an intriguing speculation that one of the sources was Justice Kennedy himself – which would be remarkable; SCOTUS justices do occasionally speak with journos but usually on general matters, or long after a case has been decided. If true, one can certainly understand why an anonymity request was honored. And if true, it also speaks poorly of Kennedy.
Herein the rub. Sometimes, anonymous sources do serve the public good by helping to expose serious issues that would otherwise go unreported. This, IMO, is not per se unethical – sometimes, these individuals step forward at great personal risk, even if an anonymity request is granted.
The problem, as you’ve implied, is partially that the media has proven itself untrustworthy. But I would add that so, too, are the politicos and bureaucrats who play the anonymous source game like footsie with all-too-willing reporters.
The last sentence, as you no doubt know, is a rationalization. Two, really.
If only there were a code of ethics that would govern the use of anonymous sources.
Were I an editor, I would have at least three rules.
– I must know the identity of the anonymous source, and a full background check should be done discreetly.
– if the anonymous source makes an accusation, and the target is, for some reason, prohibited by law from responding publicly (such as attorney-client privilege), the story is not reported. (Note that this does not apply to situations where the target would have to reveal embarrassing information to rebut the accusation, but would not face civil or criminal penalties per se for doing so.)
– if the anonymous source is exposed as having lied, the identity will be exposed.
Good standards, Michael. Especially the last one.
Why does it have to be fair? Why are we so obsessed with fairness? The media isn’t a court of law. They don’t have to abide by rules of hearsay. That’s ridiculous. If we followed those rules nothing would get reported. It would amount to a violation of the first amendment. Leave reporting to the reporters and the courtroom to pedantic litigators. Journalism wouldn’t be what it is without anonymous sources. I suppose you’d love to make anonymous sources illegal though. Then you could root out the nasty whistle-blowing source who laid bare Fast & Furious and embarrrassed Holder and have him held accountable, eh? Or find this law clerk who had the audacity to make public Roberts’ vote switch and have him fired.
Forget proving the vote switch. Is there anyone who honestly believes Roberts didn’t switch his vote? I mean, really? But furthermore, who cares? However he made the decision, he made it. And anyway nothing could demean Roberts more than the substance he put forth in his own opinion. Regardless of whether or when he switched his vote, it’s obvious he’s switched sides. Not one person would have predicted him to come down where he did. And I’m not sure I agree, but some people say the very opinion itself contains proof that he switched sides. But again, who cares? I don’t think anybody out there is blaming Obama for pressuring Roberts into a bad decision. No. We all know that Supreme Court Justices are appointed for life to protect against undue influence. If people are upset about a bad opinion, they know who to blame. There’s only one person. It really doesn’t matter whether he switched his vote. People are only fascinated by his motivations because it is truly a bizarre ruling coming from the last person we would have expected it to come from. End of story.
I don’t believe or not believe Roberts switched his vote. People can make up their minds about what they believe based on facts, or mistakes, or superstition. The news media is supposed to report facts.
Your approach, as usual, is an incoherent utilitarianism. “Why are we obsessed with fairness?” Because it’s one of the foundations of ethical conduct, that’s why. Because when you discard the acceptance of the need for maximum fairness, anything goes. “If we followed those rules nothing would get reported.” Utter nonsense. If we flowed these rules nothing false would be reported. If we followed these rules individuals wouldn’t be able to manipulate the media and mislead the public for personal gain. Your “reasoning” is the logic of the Spanish Inquisition and the Salem Witch Trials.
“It would amount to a violation of the first amendment.” How do you come to THAT ridiculous conclusion? Nothing in the First Amendment approves of irresponsible journalism—it just unfortunately permits irresponsible journalism, just as it permits plenty of unethical speech—like lies, according to the recent decision on The Stolen Valor Act. No law, except the wrong-headed Shield Laws, protects journalists from having to name their sources, and in cases like this, they should have to. There’s no right to protect cowards, liars, rumor-mongerers and troublemakers in the Constitution.
Of course the law clerk, if it was a law clerk, who blabbed, or lied, to the reporter should be fired. He or she shouldn’t get a bar membership either. Lawyers are pledged to confidentiality; clerks sign an oath. He wasn’t whistleblowers illegal activity: your whistleblower comparison is wrong, and hogwash. We’re not talking about whistleblowers. We’re talking about leakers, who are all 1) liars, because they broke pledges of confidentiality, and often laws, and 2) untrustworthy.
Why are we obsessed with fairness? Why honesty? Why trust? Because its an ethics discussion. I think most readers comprehend that.
Meanwhile, as ana aside, it is certainly not a bizarre opinion. It’s a legally valid opinion that some people disagree with, many for reasons of ideology rather than law, and most because they don’t know what they are talking about. Nor would anyone caring to be logical say only one Roberts is responsible for a decision that could have been completely different if any one of eight other justices voted differently.
And as usual, you ignore the general thrust of what I’m saying and pick apart one little side comment like “Why are we obsessed with fairness?” My point was that the media is not the place for nit-picky rules about hearsay. It wouldn’t be “fair” not to let people report things (even if they later turn out to be false) just because it’s hearsay. The point is, LESS truth would get reported if we couldn’t use anonymous sources. It’s a mainstay of journalism. If everybody had to follow the rules of evidence when reporting something, we’d be less informed as a society. And we’d have to shut your little blog down.
I didn’t say or imply that the media should be held to courtroom rules of evidence. Read. I wrote that it wouldn’t be admissible under oath in courts, and assumed that informed readers could figure out why: it’s unreliable. It isn’t proof. Ergo, the anonymous source who claims to know what Roberts was thinking doesn’t justify an assertion of fact.
Typically the opening statement in an article or argument is the central one, and not tangential.