Media's Publishing of Sensitive Material Raises Ethical Questions

Last Friday, in a fourth-floor office at the headquarters of the Dallas Morning News, editors grappled with an enviable dilemma.

The newspaper had obtained details of an interview with Oklahoma City bombing suspect Timothy McVeigh in which the former soldier allegedly told a defense lawyer, in remarkably chilling terms, how and why he carried out the attack.

It looked like a major scoop, particularly when more media outlets than ever are competing for the public ear. But the News, like other papers that obtain information about sensational crimes, had a significant obstacle to consider: ethics.

Not only could the story prejudice the jury pool and sway the outcome of Mr. McVeigh's upcoming trial, but the purported confession was protected by the attorney-client privilege, and therefore would not be admissible in court.

Although it's unclear what motives persuaded editors to break the story on its Internet site Feb. 28, publishing the information has prompted a stinging attack from McVeigh's lawyers and raised an age-old issue in American journalism: How to balance the public's right to know against the constitutional guarantee of a fair trial.

Just last summer, editors at the Atlanta Journal-Constitution faced a similar decision when they learned that the FBI was pursuing Richard Jewell as the chief suspect in the Olympic Park bombing. Again, it was a sensational case with national interest, and again, the paper published.

After the FBI dropped Mr. Jewell as a suspect, he received cash settlements from NBC and CNN and has filed a libel suit against the paper. Although the case did not involve a pending trial, and the newspaper did not offer any proof of Jewell's guilt, editors have been criticized for participating in a "rush to judgment."

To editors at the Atlanta daily, the fact that the FBI had identified a leading suspect in the bombing was significant news, and their decision to print the story was consistent with the paper's role as an information provider. "We honored our obli-gation to the public and accurately report-ed on the status of the investigation...." writes publisher Roger Kintzel. "For us to settle a case that attacks fair, accurate, and responsible reporting would send a confusing message to our readers and undermine our credibility and reputation."

Yet to many critics, media outlets stand to do more damage to their reputations by deciding to publish sensitive information, particularly when it relates to high-profile crimes and could be construed by the public as a ploy to boost ratings or circulation.

"All news organizations are under substantial pressure these days to break away from the pack on highly publicized criminal cases," says Howard Kurtz, the Washington Post's media critic. "Sometimes that may result in publishing half-baked allegations that haven't been checked out."

Moreover, many defense attorneys argue that the public's right to know is less important than the integrity of the legal system - which was designed to protect defendants from the untempered passions of the masses.

Defense attorney Roy Black, speaking this week on CNN, argued that the statements attributed to McVeigh in the News article will hamper the ability of jurors to consider McVeigh's case objectively. "You can question [potential jurors] as long as you want," he says, "but that's still going to be in the back of their minds when they're considering a verdict."

Defense attorneys contend that the document the News obtained was a deliberate fake and was procured by illegally breaking into defense computers. The newspaper insists its reporters did nothing illegal or unethical. The defense team's attempt to undermine the paper's credibility, experts say, is to be expected.

Assuming the newspaper obeyed the law, First Amendment advocates argue that its decision to publish the story is good journalism - particularly at a time when more news organizations are being sued, or threatened with legal action.

"Newspapers aren't exempt from laws of general application," says First Amendment lawyer Floyd Abrams. "What newspapers have a special right to do is ... to publish."

To Mr. Abrams, questions of attorney-client privilege and the potential corruption of the jury pool are problems for the courts to consider, not the media. "It happens all the time that people ... make things available to the press. A good part of the best of journalism, not the worst, involves the press publishing information that people weren't supposed to give them."

According to Paul McMasters, ombudsman of the Freedom Forum Media Studies Center at Columbia University, much of the controversy surrounding these cases stems from the increasing number of media outlets, many of which dabble in the sensational. This increases the pressure to break big stories, he says, and has sparked more coverage of the media itself - helping fuel public skepticism about the news business.

Moreover, he contends, the American public is more demanding than ever, and its appetite for up-to-the-minute news forces editors to make tough decisions on the fly.

"The irony of this situation is that the press has never been better than it is today," Mr. McMasters says. "Not only are journalists more professional, but for the most part they're more ethical and sensitive to the concerns of their audiences."

"That's not to say that the press doesn't need more accountability," he finishes.