What is off the record, post-Fowler?

Mayhill FowlerThe Huffington Post blogger's decision to tape, and then post, Bill Clinton slamming Vanity Fair writer Todd Purdum is still being discussed and dissected all over the politics and mediasphere. (Here's a Howard Kurtz story about Mayhill Fowler in today's Washington Post; Bill Boyarsky wrote about Fowler earlier at Truthdig.) More locally, Fowler's new celebrity prompted an email exchange about the state of journalism ethics between Marc Cooper, Fowler's editor at the HuffPost, and Joel Bellman, ethics chair of the Society of Professional Journalists chapter here. Bellman is also the communications deputy to Supervisor Zev Yaroslavsky, and concerned about the rules of media engagement, so he wore two hats in the conversation.

Their entire exchange follows, provided by Bellman with the permission of Cooper:

Photo of Mayhill Fowler: Thor Swift for the Washington Post

On Tue, Jun 3, 2008 at 4:41 PM, Joel Bellman wrote:

Marc -

Extremely troubled by Mayhill Fowler’s item about Clinton's indiscreet rope line comments in the HuffPo. Did he know she was a journalist? Did he know he was on the record? Did he know he was being recorded? Seems to me that fair play dictates he should have been told - or are politicos no longer entitled to the option of going off the record or having a private conversation?

From: Marc Cooper
Sent: Tuesday, June 03, 2008 4:48 PM
To: Joel Bellman
Subject: Re: Clinton on the Ropeline

There's nothing to be troubled about. It was not a private conversation. He came over to talk to her clump of folks. He spoke freely and loudly with a group of people listening. Her recorder was totally visible. He held her hand and didn’t let go and kept talking even though she wanted to give others a chance.

I don’t see anything that could possibly be interpreted as him having any expectation of privacy.

She did exactly what I would have done in the same situation. I have stood on many ropes lines and popped out questions to passing pols. I felt no obligation to ID myself in any manner in those moments. The pol has the option to keep his mouth closed and not talk.

And since when does a campaigning ex-president believe he is off the record when talking out loud to a group of people in one of his own public events? Those days are long over.

On Tue, Jun 3, 2008 at 5:02 PM, Joel Bellman wrote:

OK, if you say so. But I must admit I've operated on a different set of assumptions about actually publishing remarks like that unless they were overheard being made to somebody else, in which case there's no implied compact between the person speaking and the person reporting. If I ask a public figure a question or engage in a small-group or especially a one-on-one conversation with him/her, I would feel obliged to make more of an up-front disclosure if I intended to publish or otherwise disseminate it. It does sound like he had no idea he was speaking for publication - but if you're saying "the pol has the option to keep his mouth closed and not talk," that implies only two options - on the record, or no comment. Are they really no longer entitled to know to whom they're speaking and whether anything they say is likely to get published or not? How long will they be willing to speak candidly under those circumstances? Pretty soon everything will start sounding like a talking press release.

From: Marc Cooper
Sent: Tuesday, June 03, 2008 5:11 PM

How can he have an expectation of privacy if he stops in front of a group of people and speaks at length at full voice while someone is holding a recorder and others are snapping photos and taking videos? I don’t get it. In any case, as I said, it clearly doesn’t matter, does it? Because even if Mayhill was wrong and even if I am wrong, how can someone as smart as Bill Clinton not assume in the current period that he could be recorded and that every word could be posted? That's just a fact of life in 2008.

On Tue, Jun 3, 2008 at 5:13 PM, Bellman, Joel wrote:

Would it be reductionist to summarize your position as, "In 2008, for public figures there is functionally no longer any such thing as ‘off the record?’"

From: Marc Cooper
To: Joel Bellman
Sent: Jun 3, 2008 5:19 PM

No, it wouldn’t.

This was part of a parallel exchange, Bellman says. So it's a little out of place chronologically.

From: Marc Cooper
Sent: Tuesday, June 03, 2008 5:01 PM
To: Joel Bellman

I realize I didn’t answer your specific. Yes, a pol certainly has the right to being off the record or having a private conversation. You achieve either of those by doing either of those, i.e. you either invite someone to talk with you privately and you keep it private, or you enter into a consensual agreement with a reporter that he or she can continue to listen to you ON CONDITION that it stay off the record.

But walking by a rope line, stopping to talk to a group of people, answering a question lobbed your way and staring into a recorder and speaking full voice to everyone in earshot is what I unequivocally call On The Record.

Further, if Mayhill didn’t work for us, any of the other 10-15 people who were listening in could have blogged it on Facebook or recorded it on their cell phone and put it on YouTube or have put it on their blog..

You press guys better figure all this out because it hardly matters at this point whether you are troubled or not, or even if you are right or wrong (in this case you’re wrong.) Because it doesn’t matter if you’re right, and your guy still winds up on YouTube saying “macaca.” It just becomes a fact of life. The technology overrides the old ground rules. In this case, however, Mayhill did just as I would have 25 years ago.

On Tue, Jun 3, 2008 at 5:10 PM, Joel Bellman wrote:

Well, as I said in my previous email, it's one thing to overhear, as a reporter or a civilian, something a pol is saying out loud or to somebody else and report that, since there's no implied contract or relationship on either side. It's another to be a party to a conversation arguably conducted under false pretenses - NOT that I'm suggesting that's what Mayhill did, but I've known it to happen with other reporters. But she does call herself a reporter in the piece, so what happened to the time-honored obligation to disclose that fact to the one whose comments you intend to publish? I take your point about the technology, but I'm not one of those who believes a journalist is anyone who happens to have a recording capability in their cell-phone or PDA.

Fertile topic for an upcoming SPJ event - I assume you'd be willing to be a panelist were I to organize such a thing?


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