[Update on June 26, 2010 Fired U.S. Army General McChrystal claiming his controversial comments in Rolling Stone were made 'off the record.' And Rolling Stones reporter Micheal Hasting refutes that with some very insightful comments on the concept of "off the record."]
While talking to a journalist there is no such thing as a comment made completely "off the record."
Why? Journalists have a professional obligation to collect information and share it with the public. They also gain status, pay raises, win awards and advance in their careers by having the most, best information the soonest.
So journalists have no incentive to ignore or bury what you tell them and every incentive to use it. When I was a journalist nothing in the world would set my head spinning worse than someone who wasted 20 minutes of my time chatting on the phone only to then say, "but you aren't going to print any of that. Right?"
Wrong.
There is no such thing as an official definition of "off the record," "on background," "not for attribution," "confidentially" or any other "safe harbor" framework that will allow you to tell a journalist anything that journalist will not convey to their audience. These are not legally defined terms you can rely upon like the terms of a contract. You may possibly learn to trust a particular journalist's discretion, but there is no official "time out."
In many ways your conversation with a journalist is just like a conversation with opposing counsel. If you can trust that person's discretion, great. If you cannot, or if you are not sure, then be discreet. But keep in mind that their interests and loyalties are not the same as yours.
Talking to a journalist is also much like being on the record in court. As an attorney you should put yourself in that same frame of mind: making a record. Do not say anything you would not want to see on the front page of your local paper.
Be professional, polite, accurate, discreet, while keeping your overall theme guiding your every comment. Do that and you will never go wrong.
Again. While talking to a journalist there is no such thing as a comment made "off the record."
From the time you start talking to a journalist on the phone, in a studio, in front of a camera or walking down the hallway at the courthouse everything you say or do is "on the record." Prepare and use discretion just as if you are in court, on the record.
The only "rule" [if you want to use that term] is that if a fact is in any way relevant it might go in the story.
If your receptionist tells a journalist that you announced "you are not wasting your time talking to any stupid reporter" that could end up in the story. Especially if the story is about disclosure, the 1st Amendment, or media relations. Or if you later deny avoiding public comments.
If you answer the phone while yelling at a subordinate and the journalist overhears, that could end up in the story. Especially if the story concerns allegations of aggression or courtroom antics or misbehavior or if you have a reputation as brash or rude.
If your cellular phone is ringing during the interview and the ring tone is noteworthy [Imagine allegations that you have a prior drunk driving conviction, your denials, and then your cellphone playing the song "Margarita-ville" loudly in the background...] even that could end up in the story.
Are there exceptions to this absolute "always on the record" baseline with journalists?
Maybe.
After you have established a long term relationship with a journalist, after that relationship has proven valuable to both of you, and after you have carefully tested the journalist's trustworthiness and discretion you might reach a point where you can trust that journalist with information you know they will not print on the front page. Maybe.
But such a relationship is just that; a personal relationship. It does apply to anyone else, not even to other journalists from the same media outlet. And that ad hoc confidentiality could end at any time if you have allowed yourself a foolish, indiscreet revelation the journalist thinks must be shared with the public.
Don't take that risk.
If you always treat every interaction with the media as if you are 'on the record' you will never have occasion to lose sleep regretting that ring tone.
Attorneys beware: who is that ‘journalist’ on the phone?
In Michigan, ‘old media’ are lining up to attack and pillory a Legislative proposal to create a voluntary registry for journalists. Such a registry would allow the public to determine exactly who is calling themselves a journalist, and what their qualifications are to do that.
The news media’s objections to the idea have not been subtle. The idea has been labeled ridiculous and unconstitutional right out of the gate. For better or worse, the idea touched a nerve. And it touched a nerve with the very people who own the barrels of printers ink.
Why should we as attorneys care about questions of journalistic qualification? Well, for starters, journalists have a myriad of special privileges that most people do not enjoy. They enjoy access to people and places, special legal status, and a reputation for being bound by ethical rules and a duty to the public. You take their calls.
Yesterday a colleague shared this story. A few months ago a very well respected bar association was contacted via phone by a journalist. The journalist asked loaded, leading questions that the bar spokesperson wisely refused to answer off the cuff, requesting to gather the needed information and call this journalist back.
Well, after a bit of investigation the “journalist” turned out to be no journalist at all, but a layperson with an amateur blog and a personal axe to grind. This blogger had made it past a couple levels of gatekeepers and been allowed to chat with the spokesperson, all based upon his self-adopted label: “journalist.”
A similar thing happened to me last week. A pushy middle-aged man, dressed in shorts and a t-shirt, describing himself as ‘a journalist,’ came into our lobby with no appointment and began asking our receptionist strange questions in a rude tone.
“Since our members are attorneys, didn’t we have an obligation to allow the public and journalists to attend our private board meetings?” “Since we had [certain words] in the name of our organization, didn’t that imply we had Constitutional obligations to the public??” “Didn’t the First Amendment give [our casually dressed friend] the right to attend our [private] Board meetings, ask for copies of our Board minutes, and generally hang out and pepper us with questions as long as he felt necessary?!?” And, “when could he be allowed to address our leadership to air his grievances regarding our answers to his last few questions???!”
I was quietly asked to come out and ‘handle’ our concerned visitor. I listened to his questions patiently and tried to answer them. But whenever this self-proclaimed journalist made incorrect [frankly, ‘bizarre’ describes them better] assumptions as part of framing his questions, I calmly corrected his misconceptions.
It took all of three minutes for my journalistic friend to storm out of the door without so much as a thank you or goodbye.
Say what you will about First Amendment press protections, but in this new age of ranting bloggers and self-appointed amateur “journalists” I’d sure like to have had some sort of registry to find out who this man was, and through what media affiliation he felt the right to label himself a journalist.
[See another perspective on the problem of news, the Internet, and what is left of journalism in the June 2, 2010 Atlantic ]
The news media’s objections to the idea have not been subtle. The idea has been labeled ridiculous and unconstitutional right out of the gate. For better or worse, the idea touched a nerve. And it touched a nerve with the very people who own the barrels of printers ink.
Why should we as attorneys care about questions of journalistic qualification? Well, for starters, journalists have a myriad of special privileges that most people do not enjoy. They enjoy access to people and places, special legal status, and a reputation for being bound by ethical rules and a duty to the public. You take their calls.
Yesterday a colleague shared this story. A few months ago a very well respected bar association was contacted via phone by a journalist. The journalist asked loaded, leading questions that the bar spokesperson wisely refused to answer off the cuff, requesting to gather the needed information and call this journalist back.
Well, after a bit of investigation the “journalist” turned out to be no journalist at all, but a layperson with an amateur blog and a personal axe to grind. This blogger had made it past a couple levels of gatekeepers and been allowed to chat with the spokesperson, all based upon his self-adopted label: “journalist.”
A similar thing happened to me last week. A pushy middle-aged man, dressed in shorts and a t-shirt, describing himself as ‘a journalist,’ came into our lobby with no appointment and began asking our receptionist strange questions in a rude tone.
“Since our members are attorneys, didn’t we have an obligation to allow the public and journalists to attend our private board meetings?” “Since we had [certain words] in the name of our organization, didn’t that imply we had Constitutional obligations to the public??” “Didn’t the First Amendment give [our casually dressed friend] the right to attend our [private] Board meetings, ask for copies of our Board minutes, and generally hang out and pepper us with questions as long as he felt necessary?!?” And, “when could he be allowed to address our leadership to air his grievances regarding our answers to his last few questions???!”
I was quietly asked to come out and ‘handle’ our concerned visitor. I listened to his questions patiently and tried to answer them. But whenever this self-proclaimed journalist made incorrect [frankly, ‘bizarre’ describes them better] assumptions as part of framing his questions, I calmly corrected his misconceptions.
It took all of three minutes for my journalistic friend to storm out of the door without so much as a thank you or goodbye.
Say what you will about First Amendment press protections, but in this new age of ranting bloggers and self-appointed amateur “journalists” I’d sure like to have had some sort of registry to find out who this man was, and through what media affiliation he felt the right to label himself a journalist.
[See another perspective on the problem of news, the Internet, and what is left of journalism in the June 2, 2010 Atlantic ]
Journalists --show us your papers?
Michigan is playing with the idea of creating a 'registry' for journalists. The idea, according to bill sponsor State Senator Bruce Patterson, is to allow the public access to information on journalists' qualifications and experience.
Given the implosion of the traditional news media, and the rise of the stereotype of the know-nothing, basement-bound blogger,[present company excepted] the idea seems to have some merit. Wouldn't you like to know if the "reporter" who left you a voicemail about your big verdict has a degree and some experience on the legal beat, or is just some unemployed kid with an IP address?
"Your role is critically important to the actual success, perhaps even the survival, of our constitutional republic," Patterson told reporters this week while discussing his bill. "That's why the First Amendment is so important and it's given such elevated status. There are correlative duties and responsibilities if you get a right. And I just think we're squandering this."
But the media --old and new-- have risen up en mass to oppose it. Interesting to ponder why professional journalists would be so opposed to an idea that could separate the wheat from the chaff ... so to speak
Read more.
See the bill language.
Given the implosion of the traditional news media, and the rise of the stereotype of the know-nothing, basement-bound blogger,[present company excepted] the idea seems to have some merit. Wouldn't you like to know if the "reporter" who left you a voicemail about your big verdict has a degree and some experience on the legal beat, or is just some unemployed kid with an IP address?
"Your role is critically important to the actual success, perhaps even the survival, of our constitutional republic," Patterson told reporters this week while discussing his bill. "That's why the First Amendment is so important and it's given such elevated status. There are correlative duties and responsibilities if you get a right. And I just think we're squandering this."
But the media --old and new-- have risen up en mass to oppose it. Interesting to ponder why professional journalists would be so opposed to an idea that could separate the wheat from the chaff ... so to speak
Read more.
See the bill language.
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