Off the Record? Yeah, Right

What does “This is off the record” mean anyway? That what you’re about to say can’t leave the room? Of course it’s going to leave the room. What we think and do is predicated on what we know, and as soon as you tell me something I’ll know it even if I can’t say I do.

Years ago when I worked at the Sun-Times the woman presiding at the far end of the dinner table one night had enviable contacts in the Dan Walker administration. She interrupted the juicy behind-the-scenes story she was telling to give me a look. “This is all off the record,” she said. Between us sat 20 of the biggest gossips in Chicago. But none of them were reporters.

Most of my interviews are with other journalists, and when I ask for clarification, “This is off the record” usually turns out to mean “Use what you need but keep me out of it.” Sometimes it doesn’t even mean that. It’s just the defensive reflex of someone who wants to think out loud before speaking for attribution.

Journalists get annoyed at sources who won’t go on the record, and the ones I talk to like to stay on the record themselves. When they go off–usually because they want to keep their jobs–they often apologize.

For both philosophical and practical reasons, the idea of journalists conducting a public meeting but declaring it off the record is as unlikely as it is silly. But it just happened in Chicago.

A flyer announced the February 18 event: “Association for Women Journalists presents an Evening Off the Record, ‘The Case of the Disappearing Protection: What’s Left of Reporter’s Privilege?’ A thought-provoking discussion about the future of Journalism.”

Reporter’s privilege is the right of reporters to protect their tapes, notes, photos, and, most important, sources. It’s a shaky right, protected by tradition as much as by law, and never absolute. Last summer federal appellate judge Richard Posner, weighing in on a case involving two Sun-Times reporters who’d refused to turn over notes that might tangentially affect a criminal case, wrote an opinion in which he declared that under federal law reporter’s privilege doesn’t exist.

The AWJ flyer announced, “Panelists will discuss what the privilege was before the Posner decision, what it is now and what it’s likely to be in the future.”

Who should come? “Reporters… editors…lawyers…students…citizens concerned about the First Amendment.” In other words, anyone who wanted to. Yet the discussion would be off the record. The flyer made this clear over and over. “Those willing to report on the subject may contact the panelists independently but may not quote or refer to their comments during the program.” Posner must be one scary guy.

The ground rules might have added a note of drama to the marketing, but otherwise they were pointless. The reporter’s privilege case before Posner was already history–the other judges on the Seventh Circuit Court of Appeals had rejected a petition to review Posner’s opinion, and the reporters’ lawyers had decided not to appeal it to the Supreme Court. And no one could expect an audience of some 60 people to leave with lips sealed. The most tangible effect of the edict was that a group of students studying media ethics and law at Columbia College who would have written papers based on what they heard at the meeting instead held a class discussion based on what they heard and then wrote papers about that discussion. Their teacher, Meg Tebo, told me that an off-the-record meeting of journalists struck her as “a little oxymoronic.”

AWJ used to invite newsmakers to breakfasts where the table talk was off the record. Those breakfasts might be defended on the grounds that they were small, closed events intended to give women journalists access to movers and shakers, and that no one should be held responsible for what’s said at 7:30 AM. But the breakfasts ended years ago. General AWJ meetings have always been on the record; some have even been shown on public access television.

Program director Kelly Kleiman (a Reader theater critic), who’s new to AWJ, says she put the evening off the record at the suggestion of moderator Lisa Keefe, who remembered the breakfasts. Keefe, who’s editor of Marketing News, now concedes, “This wasn’t that kind of meeting. I made the suggestion purely in the hopes of engendering a more candid or more comfortable dialogue with our panelists. Clearly it was a more honorary sort of thing, more of a courtesy. Some people thought we were trying to keep something secret.”

“I thought it was a little weird for a journalism thing, but I’m not a member [of AWJ],” says legal affairs reporter Abdon Pallasch, a panelist. He’s one of the two Sun-Times reporters directly affected by Posner’s opinion. “I suppose in hindsight I should have said, ‘Hey, whose idea was this? Why don’t we just kill it?’ I assumed someone had requested it. I didn’t say anything differently than I would have if it were on the record.”

Kathleen Roach, who’s been Pallasch’s lawyer in the reporter’s privilege case, also sat on the panel. Like her client, she tells me, she said nothing she wouldn’t have said regardless. “I tend to sort of assume everything I say is potentially for attribution,” she says. “If I’m going to talk to a group of 60 people, including journalists and lawyers, I’m going to think about what I say before it comes out of my mouth anyway.”

The third panelist was Jack Doppelt, who’s both a lawyer and the director of Medill’s graduate global-journalism program. Something he said just before the AWJ meeting ended made an impression. A lot of people there mentioned it to me, though of course no one was supposed to. “We were talking about the power of the subpoena,” Doppelt recalls, “and I said that although somebody said the session was off the record, if we were to be subpoenaed in a criminal case or a civil case by somebody who wanted to gain access to what we just said–even though we’d all assumed everything we said here was off the record–they’d be able to do that.”

Doppelt’s point was that a subpoena is a powerful tool and reporters need protection. “I’m not saying there was or should be reporter’s privilege for what was going on in that room just because somebody said it was off the record,” he says emphatically. “The important part to reporter’s privilege is not that somebody wants confidentiality. It’s the importance to the public of getting information from the natural conduits of information–who are journalists. To not have a journalist’s privilege at all is really to shut that flow of information down, because everybody in the legal process–prosecutors, lawyers who need information for a case–will go to journalists first, not last. That’s the key. Because journalists are in the flow of information, they’ll have that information, so they’ll constantly be asked for it if there’s no journalistic privilege.”

Fortunately, says Doppelt, in the short run the outlook’s not that bad. Posner’s “brazen and snooty” opinion affects only federal cases in the Seventh Circuit–Illinois has written a reporter’s privilege into state law. Furthermore, most federal cases are brought by federal prosecutors, who operate under guidelines that have them go after reporters last–in effect granting them a privilege.

Was Doppelt any more outspoken at the AWJ meeting because it was off the record? “I was by far the most out there,” he says, “and I can tell you, it didn’t matter to me.”

Deserted Press Box

Unfortunately for every other Chicago journalist, if not myself, Hot Type’s competition just disappeared.

Steve Rhodes launched Press Box in July 2001. It was a weekly media critique carried on Chicago magazine’s Web site, and although Chicago editor Richard Babcock liked it a lot, he was paying Rhodes, a senior editor, to write major articles. Writing Press Box became a lot like moonlighting. “I had to do a fair amount on my own time,” Rhodes says. “I had to work hard to get it treated not so much as an afterthought.”

Last week an announcement was posted online where Rhodes’s column should have been: “Because of the demands of the print magazine, Press Box…will no longer appear.” About a year ago, says Rhodes, he and Babcock decided to “dial back the column. We cut back on the amount of reporting. It wasn’t breaking news as much. Consequently, a lot of the best tips I got I didn’t have time to investigate for stories. I relied on clever little blurbs, which to me was not the meat of the column. And the frequency started to suffer. If it’s a weekly column it should be produced every week. That’s my contract with readers.”

Frustrated by these compromises, Rhodes proposed various strategies to Babcock–they could turn Press Box into a blog or Rhodes could leave Chicago and continue the column as a contributing editor. At lunch a few weeks ago Babcock told Rhodes he wanted him to stick to writing articles. “He’s a terrific writer,” says Babcock. “Unfortunately, our stories are extraordinarily labor-intensive. He can’t produce them and still turn out a labor-intensive weekly media column.”

I’ll miss Press Box. Judging from the e-mail waiting for me when I came in to work Monday, so will a lot of other people.

Meanwhile, John Kuczaj, a researcher for Tribune Broadcasting, has killed off his own online forum, For five years CME commented sarcastically on local media (though after the first couple of years Kuczaj wisely dropped Tribune Company properties from the mix). Now he’s shut down the entire Web site. “It just became apparent to me,” he says, “that being an online media critic and working for a large media company was a conflict of interest and it was time to pull the plug.”

Kuczaj had already abandoned, which began as a spoof of RedEye and Red Streak. He’s still maintaining his original Web site, the eight-year-old

News Bites

Sun-Times headline, February 18: “Bush finds support with Iraq-bound guardsmen.”

Tribune headline the same day: “Political storm about Guard duty hovers over visit.”

Sun-Times (actually AP) detail: “In interviews, soldiers brushed off the flap about Bush’s record.”

Tribune (William Neikirk) detail: “Many troops would not talk on the record when asked about the controversy, but some privately expressed doubt about the president’s service while others supported him. After the speech, one soldier jested, ‘Well, I guess we will all go out and vote for John Kerry now.'”

Tribune headline, February 20: “Poll: Haiti better under Duvaliers.” Read the article and you discover the poll was taken of 600 Haitian-Americans. As Tribune reader Chris Hayes e-mailed me: “What next? ‘Poll: Cuba better under Batista. A recent poll conducted among Cubans in Miami found that an overwhelming majority, 99.98%, think that Cuba was better off under the dictatorship of Fulgencio Batista.'”

The poll wasn’t that meaningless. Even if life was better under the dictators, a narrow majority of the emigres, as the Tribune did report, wants President Aristide to stay in office until his elected term ends in 2006. They’re not ready to give up on democracy.

South Florida’s Sun-Sentinel, a Tribune Company paper, produced a better-focused story and a more useful headline: “Poll finds U.S. Haitians split over whether Aristide should resign.” Both stories were posted on the Tribune Web site.

Last Wednesday night I happened to turn on WGN TV just in time to hear the news that former Enron CEO Jeff Skilling would surrender to the FBI in Texas the next morning and face a multicount indictment accusing him of fraud.

Commercials followed, and I wondered what would come next. “Welcome back everybody,” said anchor Steve Sanders. “Tom Skilling joining us. It’s kind of sad when you can get excited about 40 degree weather, isn’t it?”

“It sure is,” Jeff Skilling’s big brother said with a chuckle. “Boy, it was something today.”

Tom Skilling’s segment of the news hour was even jollier than usual because of some banter about celebrating his birthday.

It was a unique moment in television and an impressive display of professionalism.

Steve Neal spent Monday night in Northwestern Hospital, where they were running tests, so he called up Harry Caray’s Restaurant and had them bring over dinner. On Wednesday he laid out several notes on the dining room table of his Hinsdale home, then got into his car in the attached garage and let the exhaust kill him. Neal held court at table 40 in the corner of Harry Caray’s once or twice a week. His lunches were long and merry, and he saw to it the important work of the day was done before they began. Some of his friends worried that his lunches were killing him and others didn’t give that a thought. Doctors finally told him to stop drinking. The medication he was taking to help him do that made him sick. In the last month or so he wasn’t the same guy. He was pale, thin, and withdrawn. Suicide catches everyone by surprise, but some alert friends could see he’d become very, very depressed.

“He just didn’t seem to be himself,” says Grant DePorter, managing partner at Harry Caray’s. He didn’t inquire. “He’s a friend,” says DePorter. “You don’t push friends.”

Over the years I wrote about Neal only when he went off half-cocked in his column, reviling someone beyond reason. He never responded. The one time I met him was a few months ago on Chicago Week in Review, where he couldn’t have been nicer.

But Neal’s friends judged him not just by what he wrote but by who he was. The County Board postponed an emergency meeting for two hours this past Monday so that the members could attend Neal’s funeral at Old Saint Patrick’s Church, which overflowed. He was a light that went out.

Art accompanying story in printed newspaper (not available in this archive): illustration/William L. Brown.