A report from Axios on the end of the Trump effect is getting a lot of attention. What I’m referring to is the enormous boost that the Trump presidency gave the national media, especially in 2020 and into January 2021, as we tried to absorb a presidential election ending in insurrection, a global pandemic, an economic collapse, and a coming to terms with racial justice and police violence.
As I noted several months ago, news audiences were falling off as early as March. What’s notable about the Axios story is that the shrinkage has followed a pattern. Mainstream, relatively nonpartisan media outlets such as The New York Times, The Wall Street Journal, USA Today and Reuters experienced the lowest amount of deterioration, a relatively modest 18%. Liberal and progressive media such as Mother Jones and Raw Story were off by 27%. And right-wing media such as Newsmax and The Federalist dropped by 44%.
There have been some complaints about methodology — especially the decision to label Mother Jones as “far left” but Fox News as merely “right-leaning.” Clara Jeffery, the editor-in-chief of Mother Jones, certainly has a legitimate complaint:
1/ I'm sorry but this piece has several data/categorization flaws that need to be called out. https://t.co/06uVTtciUP
Still, the notion that quality news has suffered less than right-wing outlets promoting Trump’s Big Lie about his election defeat certainly has some merit. The mainstream media are far from perfect, but the journalism they practice is built to last.
Another point: What this really speaks to is the nationalization of the culture and the opportunity this moment might present. For the past five years, Donald Trump has sucked all the oxygen out of the room. This has coincided with the collapse of local news — a collapse that began around 2005, but that accelerated during the Trump years.
The decline of interest in national news documented by Axios ought to be seen as healthy. Quality local news outlets can take advantage of this moment to re-engage their communities. Of course, local newspapers owned by corporate chains will do no such thing. But the rising number of independent news projects are already finding ways of connecting with their audience.
What local news can offer is journalism that’s relevant to people’s everyday lives.
More than two decades after cigarette ads began disappearing from newspapers, major news organizations are running ads on their websites from tobacco giant Philip Morris touting the company’s research into smoke-free tobacco products.
I began reporting this piece after an alert reader called my attention to an ad in The Boston Globe titled “Science leading to a smoke-free future,” which appeared over the weekend and was in rotation as recently as Monday. But in Googling around, it didn’t take long to find that similar Philip Morris ads have been published by The New York Times, The Washington Post and Reuters. No doubt they’ve appeared in many other outlets, too.
These are not ads that were automatically served up to news websites by Google. Rather, they are sponsored content, produced in collaboration with the news organization that publishes them. Such content, also known as “native advertising,” use type and layout that differ from the typical presentation. It’s also accompanied by disclosures that it was paid for by the advertisers and that the news and editorial departments had no involvement in its production.
Regular readers know that I’m a defender of native ads as long as there is sufficient disclosure, and I have no problem with the way these news organizations handle them. But partnering with a major tobacco company on an ad promoting research into tobacco products? Really?
These ads appear under the byline of Dr. Moira Gilchrist, vice president of strategic and scientific communications at Philip Morris. Some excerpts from the Globe version:
We are now on a path to one day, hopefully soon in many countries in which we operate, completely replace cigarette sales with smoke-free alternatives that are a better choice for the people around the world who smoke today. These are nicotine-containing products that do not burn tobacco, which — while not risk-free — are a much better choice than continuing to smoke….
The fundamental principle that drives our scientific work is the widely accepted fact that nicotine — while addictive and not risk-free — is not the primary cause of smoking-related disease. It’s the burning of tobacco that creates the harmful chemicals in cigarette smoke — which is why from the outset we design our smoke-free products to eliminate burning, thus eliminating smoke while providing an alternative that smokers find acceptable and will actually use.
According to Michael Moore of Australia’s George Institute for Public Health in Australia, and a past president of the World Federation of Public Health Associations, the Philip Morris ads are the latest in a series of tactics by Big Tobacco to win acceptance for e-cigarettes. In an article he wrote last year for the European Journal of Public Health, he identified other tactics employed by the tobacco companies as “use of the term ‘harm reduction,’” social-media attacks on critics, hiring lobbyists, and touting e-cigarettes as a method for quitting smoking. According to a summary of his article:
Tobacco companies face an ever-increasing rate of marginalisation. They use eCigarettes as an opportunity to improve their credibility. In the past it was “just filter it” and “light cigarettes”. More recently, Philip Morris established a “Foundation for a Smoke-free World” pumping millions of dollars into distorting arguments about harm reduction.
And, yes, Moore gives Gilchrist a shoutout: “To enhance arguments, Big Tobacco has deployed public health figures like Dr Derek Yach and Dr Moira Gilchrist.”
When I asked Megan Arendt, a spokeswoman for the anti-tobacco organization Action on Smoking and Health (ASH), about the Philip Morris ads, she told me by email: “In a perfect world, vapes would only be marketed to (and sold to) adult people who smoke. But given their clear history of targeting children, an ad ban should include all tobacco products.”
The Philip Morris ad doesn’t promote smoking or even vaping, which has its own health risks. (On Monday, Juul reached a $40 million settlement with North Carolina over a lawsuit charging that the vaping company marketed to kids. Massachusetts is suing as well.) But the ad does talk about “ensuring our smoke-free products deliver a consistent aerosol” — so the intended user of the products being developed would still be inhaling.
Cigarette advertising is legal in U.S. newspapers. The papers couldn’t be banned from accepting such ads because of First Amendment protections, but the tobacco companies themselves could be prohibited from advertising. In 1970, President Richard Nixon (yes, everything really does go back to Nixon) signed legislation banning cigarette ads from television and radio, but those are regulated media.
The New York Times banned cigarette ads in April 1999, but said the policy didn’t apply to other papers it owned, which at that time included the Globe. That July, the Globe’s then-ombudsman, Jack Thomas, took his bosses to task and called for the Globe to follow the example set by the Times and other papers. He wrote that “publishers are still in conflict, still seduced by the revenue from tobacco ads but also uneasy in the role of a siren luring readers into a deathtrap.”
My research trail went cold after I found the Thomas piece, but at some point the Globe stopped accepting cigarette ads, as did virtually all other newspapers. As ASH’s Arendt says, the Globe — and every media outlet — should take the next step and refuse to accept ads for tobacco products. Claims that the products are only intended for adults who want a safer alternative to smoking are nice, but you know what? They’ll find those products without the complicity of news organizations.
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As the Massachusetts Republican Party becomes more extreme, it’s moving further and further toward authoritarianism in order to intimidate those with whom its leaders disagree.
Just a few weeks ago it seemed beyond the pale when a member of the state committee, Deborah Martell, wrote emails in which she said she was “sickened” that a gay Republican candidate for Congress, Jeffrey Sossa-Paquette, had adopted children along with his husband.
Since then, the party has targeted a Drag Queen Story Hour at the Plymouth Public Library under the caption “Is this really the new normal?,” republishing the library’s phone number on its public Facebook page just in case anyone wants to, you know, express their constitutionally protected views. And last week the party revealed the shocking (!) information that Emma Platoff, a recently hired Boston Globe reporter who’s been covering the party’s meltdown, is a registered Democrat.
“The Boston Globe’s nonstop negative portrayal of Massachusetts Republicans sure makes sense now,” wrote party chair Jim Lyons in an email to members. “Today I learned that the reporter assigned to cover us is a registered Democrat. Journalists, registered as members of the Democratic Party, working in news media, covering Massachusetts Republicans. Well, knock me over with a feather.”
For more details, I refer you to this Twitter thread by Ed Lyons, a political activist from the moderate wing of the Republican Party. As Lyons shows, the GOP makes it appear that finding out Platoff’s party affiliation was as easy as plugging her name into an online form in Connecticut, where she used to live. In fact, you also have to enter someone’s date of birth and town or city of residence, raising the possibility that confidential information was used improperly in order to discover that she’s a Democrat.
Now, a few words about a reporter declaring a party affiliation. It’s no big deal. Ethical codes would forbid a journalist from serving as an active member of a political party by, say, serving on a city or town committee. We can’t make political donations, put political signs on our yards, or take part in any other partisan political activity. But a party affiliation is meaningless. We can declare ourselves as Democrats, Republicans, independents, Greens, whatever. We can vote, although some journalists choose not to.
Up until 2000, I was a registered Democrat. I switched my party affiliation to “unenrolled” that spring so I could take a Republican ballot in the presidential primary. I decided I liked it and never switched back. But it made no difference in how I reported on politics.
It appears that Lyons and company are attempting to intimidate Platoff, just as they were attempting to intimidate librarians in Plymouth. The goal is to divert attention from their descent into Trumpism.
From time to time I tweet a humorous (but serious) message that it’s time for Gov. Charlie Baker to leave the Republican Party. To his credit, he’s been critical of the Lyons wing. But he needs to say and do more.
The Hussman School of Journalism and Media at UNC. Photo (cc) 2020 by Mihaly I. Lukacs.
Update: There’s a protest today, called by the University’s Black Student Movement. The dean of the journalism school has endorsed it.
On Friday at noon, I hope you will join the @unc_bsm solidarity demonstration in support of @nhannahjones. It’s heartening to see so many of our campus and community friends supporting @UNCHUSSMAN faculty & staff and taking action. Thank you for making your voices heard.
Earlier: The fallout from the University of North Carolina’s refusal to grant tenure to New York Times journalist Nikole Hannah-Jones continues to spread. The latest development, reported by NC Policy Watch: Hannah-Jones has informed UNC that she will not accept its offer of a five-year contract, and will join the faculty only if she is granted tenure.
The UNC board of trustees has refused to act on her tenure case. A major donor to the journalism school, Walter Hussman Jr., publisher of the Arkansas Democrat-Gazette, pressured the board because of his objections to the Times’ 1619 Project, a retelling of American history helmed by Hannah-Jones with slavery as its central theme. NC Policy Watch has also reported that the university’s treatment of Hannah-Jones, who is Black, is among several factors in what threatens to become a mass exodus of people of color:
Jon Allsop has a comprehensive round-up of developments in his Columbia Journalism Review newsletter this morning. Among them is an important opinion piece in The Washington Post about the role of the southern white press in re-establishing white supremacy after Reconstruction. Sid Bedingfield of the University of Minnesota writes:
This history highlights why African American journalists have been compelled to advocate for Black equality. They have often carried out their campaigns in the shadow of a much larger White press that was fighting for just the opposite. And as Hannah-Jones has shown in her reporting, the success of those White journalists decades ago has ramifications today, as the legacy of Jim Crow continues to shape fundamental inequalities in American society.
What a disaster. The worst part of this — other than the obvious racism — is that the trustees and other university officials lack the fortitude to stand up to a major donor. Given how damaging this has been, you would have thought that trustees would have done the right thing long before now.
Despite backing away from a quote in which he referred to evidence for the lab-leak theory of COVID-19 as “the smoking gun,” Nobel Prize-winning biologist David Baltimore remains convinced that the explanation remains viable. In an interview with the California Institute of Technology, reprinte in the Bulletin of the Atomic Scientists, Baltimore says:
Biologists have seen what evolution can create: the whole natural world around us. We believe that evolution can do anything. But the fact that evolution might have been able to generate SARS-CoV-2 doesn’t mean that that’s how it came about. I think we very much need to find out what was happening in the Wuhan Institute of Virology. I think that we can’t say for sure yet whether the SARS-CoV-2 virus came from natural origins or if it was genetically manipulated somehow.
Janet Malcolm, at right. Photo (cc) 2013 by kellywritershouse.
Janet Malcolm, who died on Wednesday at 86, wrote perhaps our finest meditation on the ethics and morality of journalism. At The New Yorker, Ian Frazier has written an eloquent appreciation of her life and work.
“The Journalist and the Murderer,” a two-part essay published in The New Yorker that was later turned into a book, is ostensibly about a lawsuit filed by Dr. Jeffrey MacDonald, a convicted murderer, against Joe McGinniss, who wrote about the case in his bestselling book “Fatal Vision.”
MacDonald sued McGinniss for fraud and breach of contract because McGinniss — in order to maintain access — had continued to pretend that he believed in MacDonald’s innocence long after he’d concluded the former Army doctor really had murdered his wife and two young daughters. Malcolm argued that was no different from what all journalists do.
We all know the opening line to “The Journalist and the Murderer”: “Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible.” So let me treat you to her lurid yet precise closing, less often cited, on the foolishness of those who let themselves be seduced by a journalist:
Like the young Aztec men and women selected for sacrifice, who lived in delightful ease and luxury until the appointed day when their hearts were to be carved from their chests, journalistic subjects know all too well what awaits them when the days of wine and roses — the days of the interviews — are over. And still they say yes when a journalist calls, and still they are astonished when they see the flash of the knife.
As Katharine Q. Seelye observes in her New York Times obit, Malcolm was criticized at the time that her McGinniss essays were published because she failed to reveal that one of her own subjects, Jeffrey Masson, had sued her for libel, claiming she had fabricated quotes. Malcolm eventually won, but it took 10 years.
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In an afterword to the book version of “The Journalist and the Murderer,” Malcolm addresses the lawsuit and includes a section on how she goes about quoting people she interviews. It’s worth taking a look at her technique. Here, for instance, is a verbatim section of an interview Malcolm conduced with Dr. Michael Stone, who testified for McGinniss in the lawsuit:
No. In fact I had hoped to be able to say — since the judge kind of cheated me out of my opportunity to be redirected — Dan [Daniel Kornstein, the defense lawyer] said I had time to be redirected — then Bostwick cleverly ate up all the time with a bunch of silly questions so that — the judge just let him go on and on — and then finally there wasn’t really time because I had to catch a plane at a certain hour. However, the material I gave to Kornfeld, was that having looked at all this and having slept on this material the night after my first appearance at trial, I had a kind of insight, if you will, that the four intruders represented, psychologically speaking, the only truthful thing that MacDonald had told — that there were really four intruders — but, of course, they weren’t exactly as he depicted them — but there were four people who intruded upon the hedonistic — and — life style and whoring around of Jeff MacDonald — and four people who, you know, intruded into his disinclination to be a responsible husband and father, namely Colette, Kristy, Kimberly, and the unborn son. In my text I rendered this as: No. In fact — and this, too, was something I wasn’t able to say in court, since Bostwick cleverly ate up all the time with a bunch of silly questions and I had to catch a plane — the four intruders who MacDonald claimed were responsible for the murders represented the only truth, psychologically speaking, that he told. There really were four people who intruded on the hedonistic life style and whoring around of Jeff MacDonald: the four people who intruded on his disinclination to be a responsible husband and father; namely, Colette, Kristen, Kimberly, and the unborn son.
And here is how Malcolm edited the quote for publication:
No. In fact — and this, too, was something I wasn’t able to say in court, since Bostwick cleverly ate up all the time with a bunch of silly questions and I had to catch a plane — the four intruders who MacDonald claimed were responsible for the murders represented the only truth, psychologically speaking, that he told. There really were four people who intruded on the hedonistic life style and whoring around of Jeff MacDonald: the four people who intruded on his disinclination to be a responsible husband and father; namely, Colette, Kristen, Kimberly, and the unborn son.
Quite a difference. Malcolm defends her method on the grounds that spoken English is impossible to render in written English except with extensive editing, but that it should remain true to what the person actually said. “The idea of a reporter inventing rather than reporting speech is a repugnant, even sinister, one,” she says, all the while insisting that’s not what she’s doing.
But most of us were trained on the AP Stylebook, which takes a rather different view of what constitutes an accurate quote: “Never alter quotations even to correct minor grammatical errors or word usage. Casual minor tongue slips may be removed by using ellipses but even that should be done with extreme caution.”
William Zinsser, in his classic book “On Writing Well,” includes a useful discussion of the issue ranging from Malcolm to the legendary New Yorker writer Joseph Mitchell, who took considerable liberties with what people told him. Zinsser’s verdict: “I know that it’s just not possible to write a competent interview without some juggling and eliding of quotes; don’t believe any writer who claims he never does it. But many shades of opinion exist on both sides of mine.”
I agree with Zinsser. When I’m writing longer pieces, especially books, I do some compressing and editing, but I would not go nearly as far as Malcolm. If a person is that inarticulate, well, that’s what indirect quoting is for.
I also disagree with Malcolm that what we do is “morally indefensible.” The idea that every interview is a con, and that our job is to smile and let our subject think we’re on their side before we plunge in the knife, is offensive and wrong. The value in Malcolm’s observation is that it makes us think about what we do so that we can be better journalists and — dare I say — better human beings.
By the way, I have long been convinced that Jeffrey MacDonald’s murder trial was grossly unfair and that he might even be innocent. Years ago I reviewed “A Wilderness of Error,” Errol Morris’ book about the MacDonald case, for BookForum. Morris is withering in his assessment of McGinniss; but he was frustrated with Malcolm, who was someone he admired, for failing to grapple with the possibility that MacDonald had not committed the monstrous crime of which he was convicted. You can read my review here.
The Associated Press, in a long-overdue move, has announced that it will stop reporting the names of suspects who are arrested and charged with minor crimes. The worldwide news agency says that not only do those names lack newsworthiness but the lack of follow-up means that it would never be reported if they were acquitted. John Daniszewski, the AP’s vice president for standards, writes:
These minor stories, which only cover an arrest, have long lives on the internet. AP’s broad distribution network can make it difficult for the suspects named in such items to later gain employment or just move on in their lives.
The AP will also “stop publishing stories driven mainly by a particularly embarrassing mugshot,” he adds.
Painting by Frederic Schopin (1804-1880) depicting the First Crusade — “Battle delivered under the walls of Antioch between the crusaders led by Bohemond and the army of Karbouka, general of the Sultan of Persia, June 1098” (via Time.com)
In the spring of 2016, as it was beginning to look like Donald Trump might actually win the Republican presidential nomination, I attended a talk at the Harvard Kennedy School by Michael Ignatieff, a prominent Canadian politician and academic. He was appalled by Trump’s rise, as were we all. But I was struck by his peculiarly Canadian analysis.
“Politics,” he said, “should be boring.”
American politics for the past half dozen years has certainly not been boring. Rather than simply voting (or not) and otherwise paying little attention to what’s going on in Washington, we have been riveted by the spectacle — elated when our candidates win, horrified when they lose.
You might even say we now approach politics with something approaching a religious fervor. And, in fact, that is exactly what is going on. As the country becomes increasingly secular, too many of us have turned to politics in our search for meaning.
“Americans overall are moving away from organized religion, particularly the mainline faiths,” writes Linda Feldmann in The Christian Science Monitor. “And that shift has dovetailed with the rise of an intense form of partisan politics that some see as quasi-religious, providing adherents with a sense of devotion, belonging, and moral certitude.”
This is not a healthy development. Political life is important. As Barack Obama once said, “Elections have consequences.” All kinds of issues depend on who wins and who loses — reproductive rights, public health, tax policy and whether children will be separated from their parents at the border and locked in cages, to name just a few.
But a society in which we can get along and work cooperatively with one another depends on keeping a certain distance from politics. If we come to believe that politics, like religion in its more fundamentalist manifestations, is a clash between good and evil, and that our side is always good and the other is always evil, then it becomes impossible to reconcile ourselves to defeat, to acknowledging that the other side is legitimate and has a right to wield power. No wonder we are so polarized.
Politics-as-religion comes in several different varieties. The most potent and dangerous can be seen on the Trumpist right, which has come to regard the former president as someone who is fulfilling God’s destiny. A poll cited by the Monitor found that the proportion of church-going white Protestants who believe Trump had been “anointed by God” rose from about 30% to nearly 50% between May 2019 and March 2020.
Now, this might seem like the opposite of a move away from religion. But I would argue that it’s part of the increasing secularization of society. Rather than embracing the purely spiritual, Trump-supporting Christians are finding meaning by rallying around a corrupt, womanizing charlatan because he makes them feel good about themselves.
Nor is that the only sign that this particular brand of Christianity is becoming more secular. The New York Times reported on Sunday that the leadership of the overwhelmingly white Southern Baptist Conference is facing a challenge from the right. Among the issues: the right-wingers are upset at the conference’s embrace of critical race theory. It’s hard to imagine a more worldly, less spiritual concern than that, but it’s certainly in keeping with evangelical Christianity’s alliance with the Republican Party.
What is happening on the left is quite different but nevertheless cut from the same politics-as-religion cloth. The left has been becoming increasingly secular for years, and many have turned to working on social-justice issues — not only because they believe in them, but because such work fills a space that religion once filled.
“A lot of people my age have found our spiritual home in the movement to restore and expand civil rights,” Bentley Hudgins, a transgender activist from Atlanta, told the Monitor. Then there is the left’s emphasis on language and the ideology of “cancel culture” — exaggerated by its critics, perhaps, but nevertheless a real phenomenon.
Now lest you think I’m engaging in bothsides-ism, painting the right and the left with the same brush in terms of their move away from religion and toward politics, let me assure you that I’m not. As Molly Worthen, a historian at the University of North Carolina at Chapel Hill, writes in the Times, “It should be possible to hold one party responsible for voter suppression and the Capitol riot while recognizing that pseudoreligious ideologies and purity cults have multiplied on both ends of the political spectrum.”
But I do think we would all benefit if both sides turned down the temperature and stopped viewing politics in apocalyptic terms that are better suited to religion than to co-existing in a common culture.
Writing in The Atlantic, Shadi Hamid makes a provocative argument — that religion can offer a less fraught way of looking at the world than politics “by withholding final judgments until another time — perhaps until eternity.”
“Can religiosity be effectively channeled into political belief without the structures of actual religion to temper and postpone judgment?” he asks. “There is little sign, so far, that it can. If matters of good and evil are not to be resolved by an omniscient God in the future, then Americans will judge and render punishment now.”
The great gonzo journalist Hunter S. Thompson used to say that he would pull a Gideons Bible from the nightstand at whatever hotel he was staying in and page through Revelation looking for inspiration.
“I have stolen more quotes and thoughts and purely elegant little starbursts of writing from the Book of Revelation,” he once said, “than from anything else in the English language — and it is not because I am a biblical scholar, or because of any religious faith, but because I love the wild power of the language and the purity of the madness that governs it and makes it music.”
But though Thompson may have been melding politics, journalism and religion, he was aiming for a purely literary effect. Today, the politically engaged — let’s call them over-engaged — are moving past the religion but keeping the fervor. It’s not good for them, and it’s not good for us.
A couple of stalwarts on the Boston Globe’s copy desk are retiring. The following is an email to the staff from Mary Creane, the Globe’s senior assistant managing editor for production. The last line is key: “We will be filling both jobs.” What follows is the text of her email, which someone forwarded to me a little while ago.
Hi All
Bob Scherer-Hoock has decided to hang up his pica pole, proportion wheel, and non-repro blue pen (look them up).
Bob has been a rock on every iteration of the copy desk for many years. He helped with the implementation of four (maybe five) content management systems and still finds ways to make Methode do things that baffle many of us.
If he has touched a story, it has come out better. If he has laid out a page, it is uncluttered and clean.
We will miss his skills, but also his dry and penetrating wit and his compassion.
Bob’s last shift with us is July 8.
ALSO
John Harrington is leaving us as well. John has been a stalwart on the desk with a speciality in Business and Boston.
He knows where everything is in Boston and can tell you where to eat and what to get when you get there.
Stories edited by John are more clear and have fewer extraneous words than when he started.
We will miss his broad knowledge of the city and its history as well as his humor and haikus.
John’s last shift with us is July 15.
We will find a way to say goodbye properly, in the meantime, ask Bob all your Methode questions now and get John to give you a dining recommendation….
Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.
The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.
The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:
Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.
And here’s Gaziano’s conclusion:
Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.
The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.
Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:
Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.
Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.
I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.
One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.
In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.
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