leaks | Ethics AdviceLine for Journalists

By Casey Bukro

Ethics AdviceLine for Journalists.

The Supreme court verdict to overturn Roe vs. Wade, the landmark ruling establishing a constitutional right to abortion, came almost two months after a leaked draft of the decision was first reported by Politico.

The leak seemed as historic as the ruling itself. It was called “unprecedented,” mainly because all 98-pages of a first draft of an opinion written by Supreme Court Justice Samuel Alito was leaked May 2, 2022, and published by Politico in full. It signaled that the court would overturn the 1973 landmark Roe vs. Wade decision, which it did.

According to the draft, Alito came to the “inescapable conclusion” that “a right to abortion is not deeply rooted in the nation’s history and traditions.” Given the leak, the court’s final ruling appeared to be a foregone conclusion. In a 5-4 decision, the high court finally decided that individual states should establish their own abortion laws, which would make some states havens for abortions while others banned or penalized them.

Court observers said parts of previous Supreme Court decisions had been leaked or speculated upon before a final decision was rendered, but never the full text of a proposed decision as in the abortion case. It was described as a first in the court’s modern history.

In a statement, Chief Justice John Roberts confirmed that the leaked document was “authentic,” but went on to say it “does not represent a decision by the court of the final position of any member on issues in the case.” The court launched an investigation into the source of the leak. By the time of the final decision, no culprit was discovered. Some speculated it was a democrat or a republican with political motives who wanted the supreme court to protect abortion rights or abandon them. Either way, it appeared the leaker intended to influence the justices either to change their opinions or to stand fast on the Alito interpretation.

Court officials must honor their own rules and regulations governing conduct and confidentiality. Whether such rules were violated cannot be determined until the leaker is identified.

For journalists, leaks are a time-honored way to get information on stories of interest to the public. But is it ethical for journalists to use information obtained through leaks?

A reporter for an Illinois newspaper contacted AdviceLine, asking about the ethics behind publishing information gained from a person who attended an executive session by a local government body. The leaked information involved contract talks with school officials.

The newspaper already published the story, but the reporter wanted to know if it was ethical to use the information. Here is how the AdviceLine adviser answered the question:

“I asked how the information was obtained. Convinced it was obtained without deception and the source gave it up willingly to known reporters, I said there is nothing ethically wrong with publishing the documents. In fact, it seems to me to be good journalism to report on public officials about public matters when the information is obtained properly. The use of information from ‘leaks’ when there is no personal harm involved is proper.”

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The Ethics AdviceLine for Journalists was founded in 2001 by the Chicago Headline Club (Chicago professional chapter of the Society of Professional Journalists) and Loyola University Chicago Center for Ethics and Social Justice. It partnered with the Medill School of Journalism at Northwestern University in 2013. It is a free service.

Professional journalists are invited to contact the Ethics AdviceLine for Journalists for guidance on ethics. Call 866-DILEMMA or ethicsadvicelineforjournalists.org.

By Casey Bukro

Ethics AdviceLine for Journalists.

A soothsayer warned Julius Caesar to beware the ides of March, sometime around 44 BC.

Daniel Ellsberg leaked the Pentagon Papers to newspapers in 1971, revealing that the Johnson administration had systematically lied about the United States’ political and military involvement in Vietnam from 1945 to 1967.

WikiLeaks, launched in 2006, publishes news leaks and classified media provided by anonymous sources. The international non-profit organization said it released online 10 million documents in its first 10 years.

Leaks of sensitive, sometimes shocking, information are a time-honored tradition in history and the United States. It’s done, often by whistle-blowers, who believe the public is entitled to know something that is being kept secret.

The latest example is the explosive report by Politico that a U.S. Supreme Court draft opinion proposes to overturn the landmark 1973 Roe vs. Wade decision that made abortion legal in every state. Politico reported: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

The 98-page draft was written by Justice Samuel Alito, who says abortion is not mentioned in the U.S. Constitution. This argument might appeal to constitution originalists, although the high court rules on cases involving jet planes, which also are not mentioned in the constitution.

That might be among the many issues the revelation unleashed, including highly emotional protests that largely eclipsed news about the Russian invasion of Ukraine for a day or two. It opened layers of concerns about legal abortion availability, the honesty of justices who said they supported Roe vs. Wade as established law at their confirmation hearings and the authenticity of the draft opinion. A day after the disclosure, Supreme Court Chief Justice John Roberts confirmed that the leaked draft ruling was authentic, but did not represent the court’s final decision in the case.edia ethics

Among the troubling concerns raised by the leak was how Politico obtained the draft ruling, and from whom. This is in the realm of journalism ethics. The Society of Professional Journalists code of ethics cautions journalists against using undercover methods to obtain information, promising anonymity, favors to news sources or paying for information.

“The ethics behind Politico’s decision to publish the document will likely become a case study for future generations of journalists,” writes Kelly McBride, senior vice president of the Poynter Institute, a journalism school in St. Petersburg, Florida. “Politico offers very few details about how they got the copy…..(and) what the newsroom did to confirm that it’s real or even if it’s the most current draft.”

Politico reporters Josh Gerstein and Alexander Ward said in their 2,500-word story that Politico received a copy of the draft opinion from a person familiar with the case along with details supporting the authenticity of the document. They did not elaborate.

McBride wrote further: “Editors at Politico would help dubious readers if they explained why they are so confident the document is real and how they made the decision to publish it. When confronted with an unprecedented leak like this, news consumers are understandably skeptical in this era of mis-and disinformation. When journalists behind the work don’t signal that they have gone through an ethical process, consumers may conclude that ethics don’t matter to journalists.”

But McBride had no doubts that it was newsworthy. “Clearly, “ she wrote, “an unprecedented leak that could overturn a five-decade-old divisive national issue is news.”

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Professional journalists are invited to contact the Ethics AdviceLine for Journalists for guidance on ethics. Call 866-DILEMMA or ethicsadvicelineforjournalists.org.