Confidentiality

I recently had a discussion with the editors of a student newspaper at the University of Virginia called the Cavalier Daily. The paper is currently performing an admirable service in its coverage of some questionable judicial proceedings at the university. But the paper printed information which its source had been instructed by the university to keep confidential. I asked the editors whether they opposed the rule that made University Judiciary Committee proceedings confidential. They said they had no opinion on that but had a policy of printing anything that made good news.

A newspaper’s most important role in a society is the gathering and distribution of information. The Northern Virginia Daily in Strasburg is an example of an excellent newspaper. It’s an independent company and is often sued as a result of its stories, but it exposes injustice, corruption, and crime. When I worked at the News Virginian in Waynesboro our reporters often touched up the words of a government spokesperson and called it news. One of our main objectives was not to offend anyone in power. We also ran news stories on promotions at car dealerships because those car dealerships paid for ads in our paper. These policies greatly impoverished life in Waynesboro.

Often the news people need is officially secret. Ben Bradley, former editor of the Washington Post, at a conference discussing the Pentagon Papers (classified information that the Post had printed), said that he would never refrain from printing something for reasons of national security. This seemed like an absolute claim, and when pressed on it Bradley conceded that he would in fact refrain if the danger were real, but that he’d heard the government claim this many, many times and it hadn’t been true yet. I believe Bradley was right to back down from an absolute determination to print anything.

Almost any information will have groups that want it printed and groups that do not. Corporations (and universities) don’t want information printed on all of their labor practices. Our federal government keeps all kinds of information secret about past investigations and covert operations, much of which we would be better off knowing. The Freedom of Information Act goes some distance toward removing harmful secrecy. The aggressive reporting of historians and journalists serves an important role in this regard. At a time when other newspapers are being bought up by huge corporations, and small book stores and publishers are being driven out of business, it is of the utmost importance for a paper to do what it can in disseminating information.

But some information is rightly kept secret. Foreign governments have shared information with ours on the understanding that it will be kept confidential. Individuals share information with therapists, lawyers, priests, and friends on the same understanding. Sources sometimes give information to journalists on the condition that other information, including the source’s identity, will not be revealed, or will not be revealed for some period of time. As a rule, such conditions should be honored.

If someone reports a crime to a newspaper on condition that certain details are omitted, and the newspaper reveals those details, crime-reporting and trust may suffer. And a paper cannot print everything freely given to it if conditions of secrecy attach to that information from third parties. If a psychiatrist reveals something to a newspaper that was told to him or her in confidence, the newspaper must weigh against any argument for printing it the damage that this can do to particular people and to the trust people generally place in therapists. If a student tells a university paper that another student secretly has a crush on a third, the paper must weigh whatever entertainment or social value printing this has against the embarrassment or hurt it might cause. Similar considerations apply to a decision by a paper to privately reveal to someone that a secret has been betrayed.

Franklin Roosevelt opposed press conferences, saying “The President of the United States will not stand and be questioned like a chicken thief.” Richard Nixon, by some accounts, refrained from alleging campaign abuse by Kennedy for the good of the country (and of Nixon). Reporters now routinely ask President Clinton about his sexual adventures and his family. The pendulum has swung quite far, and in some ways – as is usually the case – too far. Not every major story of late has been reported for good reasons. Journalists share some of the blame for current laments over lack of privacy.

Should the Cavalier Daily have printed information given in betrayal of confidence regarding a University Judiciary Committee trial? This depends on whether printing that information did (or will continue to do) more harm than good. And part of this consideration is whether upholding the policy of confidentiality generally does more harm than good. It is not enough for the Cavalier Daily to say that the information was interesting. Many interesting things should not be printed because they embarrass, humiliate, slander, divide, antagonize, diminish trust, or play to undesirable voyeurism and Schadenfreude.

Why might the UJC want its proceedings kept secret? Without asking them, I can imagine a number of possible reasons. Good reasons might include: a desire to maintain an available jury pool and to have the current jury not play to the public, a wish to avoid the harm done by public false accusations, and a desire to shield honest accusers from additional suffering.

TV cameras are often banned from court rooms for good reason. Publicity deters corruption but also encourages hasty and vengeful stunts. This is why our American system of electing prosecutors (and contributing money to their campaigns) and of deciding trials with juries, is both admired and frowned on by other countries. Publicity is no more always for the best than majority decision-making is. The rights of minorities are protected in many ways in this country, and so are (though of late much less so) the rights of criminal defendants.

Many newspapers refrain from printing the names of people who claim to be victims of sex crimes and of people under 18 who are accused of crimes. Some would extend these policies further. Many people have their reputations destroyed by accusations that a trial (or later evidence) finds to be false. Many UVa students are under 18, and creating a separate policy for those under 18 would be problematic.

It might also be that the UJC does not want its cases treated as combats to the extent of eliminating the possibility of reconciliation between accuser and accused. Publicity in our litigious society generally works against reconciliation.

But the UJC’s motives might not be so admirable. It could be that the confidentiality rule is an advance protection of systematic favoritism. Perhaps the idea behind the rule is that a trial might show strong evidence against someone with powerful connections and that this would embarrass the university when it let the offender off the hook. If this or any other contemptible motive is the basis of the confidentiality rule, than the Cavalier Daily needs to not just break that rule (or cooperate with a source that is breaking it). The Cavalier Daily needs to campaign against that rule.

It could be, however, that in many cases there are good reasons for confidentiality and in some particular cases there are not. If this is the Cavalier Daily’s belief with regard to the recent case, then the Cavalier Daily needs to make that clear and openly state its defense of the rule and its reason for making an exception. Laying the blame on a source, on the grounds that the CD just printed what it was given, is not acceptable. The last thing a paper should do is blindly print anything that it is given.

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