Sports Law Blog
All things legal relating
to the sports world...
Saturday, September 13, 2008
 
Sports Media Ethics (or lack thereof), Part II

Today will be remembered by me as the day in which journalism ethics in sports reporting officially died. Jim Wyatt of The Tennessean (and reprinted in USA Today) publishes deeply personal and private discussions between Vince Young and his psychologist regarding contemplations of suicide that Wyatt obtained from a police report. Last May, I discussed "Sports Media Ethics (or lack thereof)" and how journalists routinely get away with intruding into the private lives of sports participants. What could possibly be a justification for this publication? Is it that professional athletes seek attention (e.g. by endorsing products) and thereby "assume the risk" that every aspect of their private lives will be exposed by the media? Is it that the public is entitled to know this because it relates to his performance on the field? Is it because professional athletes are "role models"?

There is no justification whatsoever for this publication. As I mentioned in my post last May, the media determines what is "newsworthy" and there is no external mechanism or independent body to enforce journalism ethics codes. You might be thinking, well, that has always been the case. However, the economics of the journalism industry in the Twenty-First Century are different. Too many media sources are vigorously competing with one another to grab the attention of the audience, which directly conflicts with the goals and policies of journalism ethics codes. As the credibility of the press crumbles, the justification for First Amendment protection becomes weaker. I am in the finishing stages of a paper in which I discuss the changing journalism marketplace and its impact on the First Amendment, and how courts can incorporate journalism ethics codes into tort law standards without compromising the First Amendment.

UPDATE 9/16: It is reported that Titans coach Jeff Fisher says that the police report contains many inaccuracies, including the fact that (1) Young's local marketing manager, Mike Mu, called the team psychologist, Sheila Peters, with the alarm that Young had left his home without his cell phone, threatening to quit and was speeding down the interstate with a gun in his car after talking to Mu (not the psychologist) about suicide and (2) the team psychologist, in turn, called Fisher with Mu's account but she never spoke directly with Young, as indicated in the police report, until the end of the night. As to Young's state of mind regarding possible suicide, Fisher said, "I don't buy it," and was irritated with Mu's involvement with Young.

Journalists have an ethical obligation to seek the truth, which entails a discipline of verification -- seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment. This “is what separates journalism from other modes of communication, such as propaganda, fiction or entertainment.” See Project for Excellence in Journalism, Principles of Journalism, at http://www.journalism.org/resources/principles. Before publishing the information in the police report, the accuracy of the report could have been verified by merely picking up the phone and asking Fisher whether the police report was accurate about what Fisher told the police.





20 Comments:

I have to disagree. This police report was (as far as I can tell) publicly available information. If it were stolen from the man's psychiatrist, it would be a different matter. And perhaps this information shouldn't be publicly available. But I don't see how reprinting something that anybody could find themselves with little effort is a breach of ethics.

Blogger themaroon -- 9/13/2008 2:46 PM  


in this instance it has little to do with how the information was obtained. Ok, fine it was publicly available, but what is the journalistic value in making a sad story even worse? this does not belong in sports media. It was one of the top headlines on ESPN today.. comon! there was plenty of other newsworthy sports material out there today.

Sadly, all media coverage has turned into sensationalism a la the Enquirer. Media in general has taken on a "first, do as much harm as you can" approach to reporting. it is sad!

Blogger Jimmy H -- 9/13/2008 7:24 PM  


Maroon,

The fact that the information was in a police report has no bearing on a journalist's ethical obligation to minimize harm. The publication of private facts tort weighs the privacy interest (whether disclosure of the matter is highly offensive to a reasonable person) against the public's interest in the information (whether newsworthy). The privacy interest here is very high. The pertinent question, then, is what makes the newsworthy value of this information so compelling that it outweighs the privacy interest. You haven't answered that question, and the questions I asked in my post address that issue. If newsworthiness is simply defined as whatever information is in the public domain, then it effectively swallows the publication of private facts tort altogether.

By the way, did anybody catch the inaccuracy in the press release? According to the reporter, "the supplement report gives more indications of Young's emotional state after a difficult season-opening loss Sunday to the Jaguars." To the contrary, the Titans actually beat the Jaguars, and you would expect a sports reporter to at least get that fact straight. Inaccurate reporting is another huge ethical problem and it's becoming more frequent. I read a press release last week falsely reporting that the National Football League filed a lawsuit against CBS in the fantasy league dispute. And the article said it repeatedly (it wasn't a one time typo).

Blogger Rick Karcher -- 9/14/2008 8:04 AM  


"The fact that the information was in a police report has no bearing on a journalist's ethical obligation to minimize harm." --You're kidding, right? Journalists have no license. Journalists are not certified. Journalistic ethics are as ambiguous as lawyers' ethics. Maroon and Jimmy are "right" here, hands down. I challenge you to name a "profession" that can do more harm to persons other than journalists who have virtually no penalty for inaccuracies. The worst possible punishment for a journalist is loss of job--but if the article "sells" than the journalist has just made a name for himself/herself.

Anonymous Anonymous -- 9/14/2008 9:05 AM  


Anon,

I don't understand your point. On the one hand, you ask me if I'm kidding and say that journalists are not licensed or certified. The fact that they are not licensed or certified doesn't mean that the ethics codes don't exist and that journalists don't have ethical obligations to society to seek the truth, avoid sensationalism and minimize harm (among other ethical obligations).

On the other hand, I agree with you that journalists are not held responsible for inaccuracies and that if it "sells" and grabs the attention of the audience, then it drives up ratings, and that's all that matters in today's journalism marketplace. So we can take one of two positions. We can either keep saying there is nothing we can do about it (in which case it will just continue to get worse), or we can begin to discuss how the law can create incentives for journalists to comply with their ethical obligations. I am convinced that the current economics of the journalism marketplace actually create incentives for the press NOT to comply -- and when the press violates its ethical obligations, the societal justification for First Amendment protection becomes weaker.

Blogger Rick Karcher -- 9/14/2008 11:00 AM  


Rick—
I look forward to reading your article. I have a few quick reactions/questions about your post.

First, where is the publication of “deeply personal and private discussions between Vince Young and his psychologist regarding contemplations of suicide”? In the article you linked to in your post, I see a reference to the fact that Vince Young "mentioned suicide several times" during his meeting with a psychologist, but your post suggests that there is more. Am I looking at the wrong article?

Second, you state that “[t]here is no justification whatsoever for this publication,” but you seem to identify three. Are you arguing that there is *no* matter of public interest (or newsworthiness) here, or that any public interest is outweighed by the sensitive nature of Young’s reported depression? I have to think it’s the latter. After all, in addition to the possible interests you mentioned, isn’t there a great and legitimate public interest in learning the health of an NFL quarterback?

Third, you cite several provisions of the ethics code established by the Society of Professional Journalists in your May post, but you omitted a significant portion. The code itself recognizes that “private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention.” Vince Young seeks attention. The right of publicity protects his ability to profit from the attention he receives. Isn’t that another justification for publishing personal information about an athlete, even if it is unrelated to his performance on the field? To put it another way, do you not agree that celebrities have a diminished right of privacy because they thrust themselves into the public light (and profit from this publicity)?

Blogger Gabe Feldman -- 9/14/2008 3:37 PM  


Gabe,

The first point you raise is form over substance. Who cares whether the press publishes the actual statement or conversation word for word between the psychologist and patient, as opposed to publishing the gist of it. The privacy interest is still the same either way.

As to the questions you raise in your second point, I believe that the only public interest being served here is one of pandering to lurid curiosity. I don't believe that the public has any right to know about a psychologist's concerns that a particular patient is contemplating suicide. The fact that the patient is an NFL quarterback just doesn't change anything for me, sorry.

Regarding your third point, how does the right of publicity have any relevance whatsoever to this publication, let alone provide a justification for it? You lost me there. I see no connection whatsoever between contemplations of suicide revealed by a psychologist and profiting from publicity.

Blogger Rick Karcher -- 9/14/2008 4:51 PM  


Rick—

I think this more than form over substance. After reading your post, I expected to see a transcript (or at least a detailed summary) of the “deeply personal and private discussions between Vince Young and his psychologist regarding contemplations of suicide.” Beyond reader expectation, though, I think it is safe to assume (as you do in your post) that the actual discussions between Young and his psychologist contained private and sensitive details. Publication of the discussions would without question implicate greater privacy interests, and I imagine would shock and offend you much more than the reporter just giving the “gist” of the conversation.

Let me ask my second question this way—do you think the public has an interest in knowing if an NFL quarterback plans to play in his next game? Let’s assume Young had not been physically hurt in last week’s game and the team announced that he was missing the next 3 games. Putting aside Young’s privacy interests, you don’t think the public—among others, fans paying money to watch him play— has an interest in knowing why he’s missing the games?

You missed my third point. We can leave aside the right of publicity for now. My question is: do you not agree that celebrities have a diminished right of privacy because they thrust themselves into the public light?

Blogger Gabe Feldman -- 9/14/2008 5:39 PM  


Gabe,

Regarding your hypothetical, if Young was physically injured, what is so private about that? Do you really not see a difference between publishing how he injured himself vs. what he told his psychologist? But more to the point, the team hasn't said that he is going to miss any games, so I'm having a difficult time understanding why the public needs to know this -- in other words, why the newsworthy value of this information outweighs Young's privacy interest.

Regarding your last question, even if one accepts that celebrities have a diminished right of privacy, that doesn't answer the question as to whether publication of a particular matter, with questionable newsworthy value, is highly offensive to a reasonable person.

Blogger Rick Karcher -- 9/14/2008 8:40 PM  


Gabe,

As to the physical injury hypo, the NFL rules already requires an injury list does it not? Should mental health be added to the requirements of that list? By your reasoning it would seem that it should, since you bring up the great and legitimate public interest in learning the health of an NFL quarterback in regards to the Vince Young story.

I guess i fail to see what possible legitimate public interest there is in the mental health of Young (or any other athlete for that matter).

Blogger Jimmy H -- 9/14/2008 10:54 PM  


Rick,

I guess I just take issue with your definition of ethical journalism. It's just too vague. Who's to say what's newsworthy other than the free market. The fact that the story was so popular shows that a lot of people thought it was.

How can you say, with any certainty, that the publication did any harm? Or that it might not inspire other athletes to be more aware and supportive of teammates with mental health issues?

I won't answer the question as to whether it's newsworthiness trumps the right of privacy because I don't feel morally-superior enough to the writers and the free market to do so. I'm not saying I like the direction the news media seems to be headed in (and personally, I really don't care what an athlete does off field) but I don't find it unethical either, at least not where it sticks to publicly available information. It would be quite another thing if they were stealing information from his psychologist.

I won't defend the inaccuracies either, of course, but mistakes aren't necessarily a breach of ethics. It's customary to simple publish a list of edits and retractions. That certainly belongs.

Blogger themaroon -- 9/14/2008 11:16 PM  


Rick (and Jimmy)—

Can we agree that the public has a legitimate interest in knowing the health status of an NFL quarterback? Of any health issue that may have an impact on that player’s ability to play in the next game? I obviously agree that there is a different privacy interest when we’re talking about a physical injury versus a mental health issue, but IF they both impact the player’s ability to play (or likelihood of playing), why aren’t they both within the legitimate interest of the public?

As for the actual situation, the Tennessean did report that: “For whatever reason, Young appeared unwilling to take the field midway through the fourth quarter on Sunday afternoon following his second interception and a resulting cascade of boos from the fans at LP Field.” And, here’s what Jeff Fisher had to say: "Sometimes in life, you hit a wall and that's what is happening with Vince," said Fisher. "You get booed, you throw [interceptions] and you have injuries. But we're going to turn this into a positive experience. One day, when he's ready, he'll be our quarterback again."

As to your last paragraph, do you agree that celebrities have a diminished right of privacy? In any event, while any diminished right of privacy may not answer the question, it is certainly a significant part of the analysis.

Blogger Gabe Feldman -- 9/15/2008 1:18 AM  


Gabe,

I don't believe, as a general proposition, that celebrities have less privacy than anybody else in society. I think it all depends upon what is being published. I don't accept the notion that, merely by choosing to engage in a career as an athlete or entertainer, they somehow "assume the risk" of no privacy. In that regard, I don't believe that celebrities are on par with public officials and candidates for public office -- because I simply don't agree that the trials and tribulations of the private lives of celebrities impact society the way they can for public officials who are responsible for running the country.

But ironically, celebrities are generally treated as public figures for "all purposes and all contexts" whereas government officials are generally treated as public officials with respect to matters that "relate to an official's fitness for office" (the scope of which presumably becomes broader with respect to high ranking public officials). So I just don't understand the justification for affording celebrities less privacy than public officials. I discuss all of this at length in my paper.

Maroon,

The definition of newsworthy can't be based upon "popularity". And "moral superiority" has nothing to do with it. Your comments suggest that the marketplace should determine what is ethical and newsworthy -- that's a complete oxymoron. In other words, the free market simply cannot regulate journalism ethics, especially the journalism marketplace that exists today. Media outlets owe an ethical duty to society that is not owed to society by other corporate enterprises operating in a free market. An unethical press does not deserve the same First Amendment protection as that of an ethical press.

Guys, as usual, I have enjoyed the debate, and feel free to have the last word.

Blogger Rick Karcher -- 9/15/2008 7:41 AM  


I disagree; while it appears that the report had an inaccuracy, the essential fact that Mr. Young told someone he was contemplating suicide was true, he told Mr. Mu who relayed that information to the psychologist. While Fisher can say his statement, that the police report was inaccurate, is true, that does not take away from the fact that the operative fact was true. The journalist has an ethical obligation but once this became a crisis point where law enforcement was called in, I believe this was a legitimate subject.

Blogger qtlaw24 -- 9/16/2008 6:11 PM  


qtlaw24,

How do YOU know that it's true that Young told Mu he was contemplating suicide?

Blogger Rick Karcher -- 9/17/2008 10:49 AM  


And to add to my last comment, from a privacy standpoint, I can't believe you would equate a discussion with a marketing manager to a discussion with a psychologist.

Blogger Rick Karcher -- 9/17/2008 1:03 PM  


Whatever happened to the last word? It never ends.....

Anonymous Anonymous -- 9/17/2008 8:59 PM  


It seems to me that you are accusing a journalist of the same ethics violations that most defense lawyers that I know violate. The pot and the kettle all over again.

You also fail to point out the increased income of said professional atheletes shoving themselves into the public spotlight when you hack up the media world. As the media competition increases the atheletes wages do as well. Hence, the atheletes work harder and harder at publicity ala Young hiring a "marketing manager" that made sure VY's name made the papers. Is that the media's fault?

Young gave up his privacy when he signed a contract and hired a "marketing manager".

One more aspect, the govt. has given the NFL premission to operate as a monopoly therefore the health of the atheletes has to be disclosed acording to NFL rules and supposedly the rules of the legislative body that granted the monopoly. To much money at stake to allow cheating.

Anonymous Anonymous -- 9/23/2008 2:26 PM  


Anon 2:26,

I am no longer amazed when I hear this argument thrown in the mix whenever an athlete is involved. "they make too much money", or perhaps it should be "they make more money than I do".

You also fail to point out the increased income of said professional atheletes shoving themselves into the public spotlight when you hack up the media world.

The amount of money an athlete makes does not make any difference here. You can certainly attempt to argue a "diminished right of privacy because they thrust themselves into the public light" (Gabe has made this argument several times, and while I don't agree with it, it is at least a legal argument to be made), but money is a non-issue, it has no place in a privacy debate, just like it has no place in the ROP debate.

you also bring up NFL rules, and I'm a little confused. Where in the NFL rules does it say that a shrink is supposed to leak confidential patient information to the media??? The NFL has an injury list, but as far as I know, mental health is not an item that is listed, nor should it be.

Blogger Jimmy H -- 9/23/2008 11:06 PM  


A reply to: Jimmy H said...
Anon 2:26,

Please don't put words in my mouth. I never said it was an NFL rule for a shrink to leak confidential info.

What I was alluding to is that congress has allowed the NFL to operate as a monopoly, therefore, injuries and (player status) have to be reported. Large volumes of money are at stake and the general public is picking up the tab so the govt. has a responsibility to the people to make sure everyone plays by the rules while they allow this monopoly.

The monopoly is why the players income is an issue. They are partaking of income earned from a monopoly. I wish I could have a legal monopoly in my business. If the govt. would let me have one they could peek at my income and expect me to play by certain rules that require me to enjoy less privacy. I'd be so filthy rich that I wouldn't care. I know that your going to say that I wouldn't want my medical info exposed but remember, I'm not the one threatening suicide. I wouldn't and he shouldn't. He's a spoiled athelete that wants his cake as well as everyone else's frosting. He wants all the money that a monopoly affords him but he doesn't want me to boo him as he continually fails as a qb. He threatens to quit, he threatens suicide. I say he lost all rights to privacy when he threatened suicide. Did you want the shrink to let him go kill himself and/or anyone else in the process? The shrink did the right thing. And the shrink didn't leak the info to the media. Out of concern the shrink called coach Fisher who called the police and informed the police of VY's state of mind. At that point it's public record. I also pay for the police through taxes so you can't blame them.

And for what it's worth, the players do make more than I do. You know what else? I'm okay with that. I love to watch them play.

Anonymous Anonymous -- 9/27/2008 10:54 PM  


Post a Comment