Did the New Yorker Break Journalism's Golden Rule?

Christine Blasey Ford Wanted To Stay Private. News Coverage Forced Her Out. Reporters Need To Wrestle With This.

There's a third rail in American journalism. Every cop and court reporter knows it.

It's the identities of sexual assault victims. You just don't go near them. You don't report them, you don't report details on them, you don't question this rule and if you're not sure you don't do it anyways. Journalism has few iron-clad rules when it comes to the reporting of true facts--almost everything is negotiable to news judgment at some point--but this rule is one of the least flexible, and the least ambiguous. In just this one case, reporters aren't allowed to do their job no matter how much they might want to.

This relates to three things which Christine Blasey Ford, a Palo Alto professor and until last week a private citizen, has claimed. The first is that Brett Kavanaugh, a nominee for the Supreme Court, attempted to sexually assault her at a party when both were in high school in the early 1980s. The second is that, while she had notified her Congresswoman about the incident, she didn't wish to come forward publicly. The third is that she felt compelled to do so, in a Sept. 16 interview with the Washington Post, because of the news coverage swirling around her story over that week.

As a 15-year journalist who cut his teeth covering cops and courts for a local Ohio paper, those three claims made me sick to my stomach once I saw them clearly. It's not that I have particularly strong feelings about the rule, or that it's obvious to me it was broken. But years of conditioning had impressed onto me that in a confusing case like this, the wishes of the victim are paramount. I couldn't quite tell if reporters had given them proper deference here.

And I also knew that Ford's life was about to become absolute hell. (And it has.)

While others may look at her as unfortunate collateral damage in an important public policy debate, it was hard for me to keep from viewing this in a more Hippocratic way. Journalists had a clear ethical responsibility (at least under the current rules) to prevent obvious harm. Did they live up to that? I decided to investigate.

The rule is enunciated in many different places, but its most well-known form is probably in the Associated Press Stylebook. 

"We do not identify, in text or through images, persons who may have been sexually assaulted (unless they have come forward and voluntarily identified themselves)," the 2017 edition states. It advises caution on other serious crimes and includes an exception for manhunts (arising from the Elizabeth Smart case), but that's pretty much it.

The rule goes back a long time and used to be codified into state laws, believe it or not, until the Supreme Court struck those down. It is still supported by most victim advocacy groups and experts. An accuser may face backlash from the alleged rapist's defenders, and has to figure out a way to go on with his or her life. (Murder victims don't have that problem.) But most importantly, victims organizations stress that revealing names will discourage future victims from coming forward, even to police.

"Victims remain silent because they fear being subjected to the intense public scrutiny and blame that often follow being named in the media," wrote the National Alliance to End Sexual Violence. "Our culture continues to condemn the victim for rape and, as a result, an extraordinary amount of shame and silence follow the crime."

But let's get back to the Kavanaugh/Ford case.

The timeline of events is important here, and its complexity can be a hindrance to seeing the issues clearly. On July 30, Ford wrote a letter to Rep. Anna Eshoo (D-Calif.), her Congresswoman, detailing the allegations. As lawmakers began to slowly circulate the letter, reporters began to chase the inevitable rumors.

The Intercept published an infuriatingly vague piece claiming that Sen. Diane Feinstein (D-Calif.), now in possession of the letter, was refusing to share it with Democrats on the Senate Judiciary Committee. The article said the letter described an "incident that was relayed to someone affiliated with Stanford University, who authored the letter and sent it" to Eshoo. The incident had something to do with "Kavanaugh and a woman while they were in high school," and that woman is represented by Debra Katz, a high-profile #MeToo attorney.

Those scattered details probably gave the reader a decent idea what this was all about. But they also give plenty for a good Googler go on if they wanted to figure out who wrote the letter. Stanford is a big school but there are only so many people who work or are affiliated with it. (Ford, it turns out, was previously a professor at the Stanford University School of Medicine Collaborative Clinical Psychology Program.) Likewise, one could probably narrow a list of likely high schools in the D.C. area, knowing that Kavanaugh went to Georgetown Preparatory School just outside Bethesda, Md. (Ford went to Holton-Arms School, also in Bethesda and about 20 minutes away.) Cross-checking those sources, for anyone with the time, would likely have created a short list of candidates.

The New York Times followed up with a report that confirmed most of the details, as well as what was already obvious--this involved sexual misconduct. (Can you wiggle out of the rule by broadening the definition of the crime? I have no idea.)

But it was the New Yorker, with its superstar reporters Ron Farrow and Jane Mayer, which finally blew this sky-high with a Sept. 14 report revealing the details of the letter--which described a graphic account of an attempted sexual assault, allegedly perpetrated by Kavanaugh at a party. There's no need to go through those details here--it's highly unlikely you're unfamiliar with them. The New Yorker, however, still neglected to name the letter-writer and said she refused to comment.

Two days later, apparently resigned to seeing her story fly around the world, Ford agreed to an on-the-record interview with the Washington Post. I don't want to paraphrase her words too much, they can stand on their own fairly well--"These are all the ills that I was trying to avoid," she said as reporters pounded on her door and she saw her letter's words twisted. "Now I feel like my civic responsibility is outweighing my anguish and terror about retaliation."

She had called the Washington Post months earlier and apparently wavered on what to do, exploring her options and setting the stage for a possible reveal while ultimately deciding deciding against it.

Since her interview with the Post, she has quite predictably been forced from her home due to a torrent of death threats. The president has shown uncharacteristic restraint and neglected to give her his usual dose of bombastic insults, but he has questioned why she didn't come forward earlier and may turn up the heat any moment now. Her life, quite clearly, will never be the same.

And did it need to be? Was it right? What if reporters had held back, and we simply never knew this potential fact about a Supreme Court justice? Just like all the horrific facts and deeds we undoubtedly do not know about powerful people in the past and present? I really have no idea.

To the extent people have debated this at all, they've focused most of their ire on the Intercept, an outlet which receives criticism from colleagues almost daily. The Intercept set the ball rolling and revealed potentially identifying details, and all the other news stories were in response.

But ultimately it's the New Yorker which decided to connect the already-public details about Ford to a vivid description of an attempted sexual assault. If the rule was broken, this is where it would have been. There was essentially no way for the New Yorker--or anyone--to elaborate on the details of the letter without identifying someone as a sexual assault victim and putting up neon arrows leading to her doorstep.

An important point to remember is that the rule covers identifying details, not just names. I remember trying to write around nearly all of the relevant facts in a court case or police report, to avoid describing the relationship between the victim and the charged or convicted. (Contrary to fears of white vans or dark alleys, the vast majority of sex crimes are committed by family or friends, so just describing how the crime happened can often be identifying.) If you've ever noticed a court story that seemed oddly blank, now you know why.

Were the details in the New Yorker piece enough to have identified her? Maybe not--but it sure seems like she felt so. Reporters were already hounding her before that story even came out, which she said was a factor in her decision to come forward. But the story was more of DC curiosity about a vague incident until the New Yorker blew it up into a national story by connecting these public details to a vivid description of an attempted sexual assault. Only then did Ford decide, to hell with staying silent.

Assuming New Yorker connected these dots, what might have been the considerations? There are plenty.

I don't want to assume too much about why Ford stayed quiet while searching her options, or why she eventually changed her mind and decided to speak out. Her indecision about what to do and her fear of the potential consequences is understandable to anyone who can imagine her position.

Helen Benedict, a professor at the Columbia University School of Journalism and author of Virgin or Vamp: How the Press Covers Sex Crimes said the basic dynamics of what assault victims must consider haven't changed in decades. But what has changed, "of course, is social media, so survivors might sometimes feel pressured to reveal their names so they can defend themselves against slander," she wrote in an email to me.

"But that also happened before the Internet--it's not as if the Internet invented the persecution of victims, or blame-the-victim culture," Benedict said.

It's unclear whether she urged the New Yorker not to publish her letter, but it seems reasonable to assume based on what she told the Post and her refusal to allow them to use their name. At the very least, it doesn't appear she was cooperating with them.

That alone would put the New Yorker in quite the ethical quandary--and this time it doesn't even have to do with the rule. Most stories about alleged sexual assault are put into motion either by the legal system--which the media has an obligation to cover--or when the victim approaches the media with an allegation. This story was put initiated by neither of those things. Absent criminal coverage, the idea of reporting an allegation of sexual assault or misconduct without the victim's cooperation or consent would fill me, as a reporter, with doubt and unease. But there isn't a specific rule against it, as far as I know. (There's also the small matter that a single anonymous allegation could be seen as unfair to Kavanaugh, no matter what he's done.)

While there was no criminal or judicial process in place, there was a political one. Ford wrote the letter to Congress with the apparent intent to influence the confirmation process. She has a right to do this, even anonymously--but this may be considered "coming forward," as per the rule's exception.

"This is an allegation that could have such repercussions, and at the time that these allegations were made, I would think that a reasonable person would know the potential consequences of it," Sandra Davidson, a professor of law and journalism at the University of Missouri, told me.

But are we supposed to theorize a reasonable person here? To me, the point of that exception is that the person has contemplated the torrent of backlash and scrutiny, but decided he or she was ready for it. Ford clearly hadn't done that--hence why she marked the letter "CONFIDENTIAL" and requested anonymity. Is it in the spirit of the rule to question the victim's judgment? If a reasonable person and Ford disagree, whose side are we supposed to take?

Regardless, the letter was becoming a news story and reporters were desperate to cover it. It was producing the kind of cryptic, detail-sparse articles which completely baffle readers. Notice that all of these news stories--the Intercept's, the Times' and the New Yorker's--frame it as a story about politics, not the allegation itself. That helps with a news hook but doesn't negate the ethical obligations. Could the rule really block Congressional reporters from covering an important letter that's clearly newsworthy? (Imagine a scenario where enough Republican senators saw the letter that it tanked the nomination, and the world never knew why.)

I can see arguments the other way about the letter, though. If the point of the rule is to ensure that victims aren't discouraged from coming forward, then reporting the letter has some chilling implications. Readers don't often pick up on the arcane distinctions we hang these decisions on. They have no reason to keep an AP Stylebook handy. Would future victims see the difference between a letter to Congress and, say, a letter to the FBI or a local law enforcement agency? Do readers even understand there was a rule about this at all?

To a general audience this might all seem like nitpicking. Reporters revealed some hugely important information about a public figure just before he may be given a position in an institution which has vast power over people's lives. Doesn't that outweigh any of these philosophical ethical issues?

Well, maybe. No one would claim the rule is absolute. But that ought to be weighed against the quite extraordinary harm Ford has faced and likely will face for a very long time. This is not a normal attempted rape case. She is now a target for rabid partisans across the entire country. Does the president's itchy Twitter finger--certainly not the New Yorker's fault--weigh this factor more heavily? 

And should she really be considered differently than any other person who finds him or herself at the center of a huge news story? I have no idea--except that the rule tells me to.

And finally there's the timeframe. I'll let others judge the Intercept and New York Times, although they clearly should be in the conversation too. Neither reported a sexual assault and thus the obligations are vaguer--but depending on how much they knew, or suspected, it may make their revelations of the high school and Stanford connection more problematic. Perhaps Farrow and Mayer felt the presence of an ongoing news story lessened their burden, but I find this logic self-fulfilling and unconvincing. Again, the rule is designed to stop you at the thrill of press-time, and other news stories do not reduce any outlet's obligations.

At a certain point, if the letter was such big news it would have been silly to try to keep everyone from knowing what was on it, especially after everyone had already kind of gotten the gist. But were we there yet?

Considering all of these implications and factors, how on Earth did the New Yorker weigh all of this--and in what must have been a matter of days, if not hours, after the Intercept and New York Times pieces ran? I don't know--an email to Ronan Farrow was unreturned.

Maybe it's time we should rethink the rule altogether. Many have argued so. If you pressed me I'd say it could use a few tweaks and exceptions. I don't understand why Jackie at University of Virginia deserves her privacy. Well, actually, I do get the argument--a potential new victim might worry that her case could be mistakenly disproven as thoroughly, somehow--but I find it a bit shaky. 

The whole point with a rule like this is that you don't question its logic in the heat of the moment. The rule is self-protecting this way--a bright and magnetically repellent line. We reporters don't have time to do all the consulting with advocacy groups and ethics experts while trying to get the story out. That's why we have a rule like this to grab onto when we need it. If you decide it's just too big a story, you approach it as a rule-breaking exception and deliberate accordingly.

Now is the time to have a conversation about just what this all means. If it was obvious that the New Yorker should have gone ahead, an exception to the rule would have negated the need to hide her identity, making the story clearer and easier for readers to judge on its merits. It also likely would have freed up time for Farrow, Mayer and their editors to find more facts. If this is a test case where the rule might have gotten in the way of an important truth getting out, then we ought to consider that.

I am in no way, shape or form qualified to judge whether it's time for the rule to be taken down or rewritten. I just know I respect it enough to rely on it when I need to. I'll let those with the time to meet with the relevant groups and really think hard on the implications have this debate. I've heard some argue that hiding victim's names contributes to the stigmatization surrounding rape--as if a quite common crime must only be spoken of in whispers. I'm very sympathetic to this view. Unconscious social cues like this can be quite powerful on human behavior. But I'm also aware that "sexual assault should be treated like any other violent crime" has implications that run in every direction and need to be considered holistically. I'm probably not the one to do that.

The rule sometimes makes journalists uncomfortable. We want to stay laser-focused on our readers and our stories. We understand the idea that we shouldn't do harm, but our stories do it indirectly every day. In the new media environment--where doxxing can terrify citizens at random and one bad news story can haunt a person's Google results for life--even contemplating the harm can seem prohibitive to doing our jobs. Some will probably ask how I could even question the method that such an important potential fact about Brett Kavanaugh got reported. But I didn't. The rule did.

Once this story hit, everyone ran to their instinctive battle stations to ready for political warfare. But this isn't just a political story. This is about something horrible happening, allegedly, to a woman decades ago, and then another horrible thing happening to her right now. Perhaps what drove me to write this was seeing people online lamenting the "leaks" which brought the story to light. Blaming the leaks implies that reporters and editors are helpless to resist publication when they happen upon a hot document. But they aren't. They have clear choices to make and a host of ethical rules to guide them through.

It's time to talk about them.