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Was it unethical for the New York Times to report the leaked PED-users’ names?

Dec 20, 2010, 11:30 AM EDT


It’s always fun to rip on The Blogger Murray Chass when he writes something ill-advised, bitter and ridiculous.  But sometimes he writes something bitter and thought-provoking (sorry: bitter is just part of the deal with him these days).

For example, over the weekend he noted how neither the New York Times nor the New York Daily News (UPDATE: Seen note below re: the Daily News) were quick to report the decision by the Justice Department to not appeal the court’s ruling that the PED-tests of the famous 104 were illegally seized.  While such editorial oversights are often innocuous, I agree with Chass that given how zealous both the Times and their PED-reporter Michael S. Schmidt and the Daily News with their Steroids “I-Team” have been in reporting even the tiniest PED-related story over the years, the fact that they were so slow to report what was truly big news in this regard was more than a little curious.  Almost everything those two outlets have written on PEDs over the past few years has been premised in some way on the list of anonymous PED tests from 2004. You tellin’ me that a final decision that the lists were illegal to begin with isn’t newsworthy? C’mon.

What interested me most, though, was that in the course of making that argument, Chass says this about Schmidt:

Michael S. Schmidt, the Times’ steroids specialist best known for inducing lawyers to violate a court seal and name protected names, did not respond to e-mail requests for comment, but Jay Schreiber, the Times’ baseball editor, did. Schmidt’s efforts incidentally in outing three players looks even worse now that the list of names can never be revealed. If there had been any good reason for the publication of those names or any names I might feel differently, but it served no purpose other than to serve some readers’ prurient interest and perhaps the reporter’s ego.

At the outset, let’s keep in mind that Chass has ripped every single New York Times baseball reporter repeatedly over the past few years because he himself was forced out of the New York Times and he just can’t stand it, thereby fueling his bile. But is Chass wrong to rip Schmidt for being the guy to report the names leaked as a result of the illegal search?

I wouldn’t rip Schmidt personally for it like Chass does but I think he and the Times made the wrong decision to name the names.

This is obviously a stance many would not agree with. Free press and free speech and all, both concepts of which I am a near-fanatical supporter.  Unlike some, I don’t think the Wikileaks guy should be assassinated. I believe that Nazis should be able to march in Skokie, Illinois.  I think the rule against yelling fire in a crowded movie house is a pretty good one, but I am skeptical of most other limits on information’s desire to be free.

But I was and continue to be troubled by the fact that the information in question here was taken in violation of the Fourth Amendment. And that the person leaking this information to Schmidt did so in violation of multiple court orders. And that, assuming the person is a lawyer, which I do assume, they did so in violation of their responsibilities as a member of the bar and officer of the court as well. Heck, because I happen to be a licensed attorney, I don’t believe I’d be acting ethically if someone gave me the names from that list and I reported on them.  Depending on the circumstances, I may very well be ethically-obligated to report the leaker to the bar.

Schmidt and most other reporters are not so limited. I realize that I’m probably in a very tiny minority on this issue, but I do think that reporting on those names is a less-than-clear-cut case from an ethical perspective, and I was and continue to be troubled by the New York Times’ reporting of the names.

UPDATE:  It has been brought to my attention that the Daily News did, in fact, report the government’s decision not to appeal the court’s ruling on December 12th.  Chass missed this and I committed an unforgivable journalistic sin in relying on Chass’ information. I mean, really, of all the people in the world to trust, why would I trust some lowly blogger?  So, apologies to the Daily News, who did get on this story earlier than Chass or I said they did.

  1. BC - Dec 20, 2010 at 11:45 AM

    I would throw my standard “Chass is a chipwich” thing out here, but I’m afraid if I use it too much it will lose its effect. Sort of like penicillin.

  2. Mr. Jason "El Bravo" Heyward - Dec 20, 2010 at 11:46 AM

    This blog is on fire!

  3. williamnyy23 - Dec 20, 2010 at 11:58 AM

    They absolutely were unethical. Blogged about this at the time ( I’d go even further and suggest that players like Arod should consider a law suit against the government and any other complicit parties. It’s one thing to expose a matter of great public healthy or national importance, and another to boost newspaper (and future book) sales by breaking the law to report on baseball players who took steroids.

    • churchoftheperpetuallyoutraged - Dec 20, 2010 at 12:10 PM

      I’m not a lawyer, so Craig or Jack chime in here, but is the paper breaking the law as well or only the leaker? I know it’s not the same as the ethical question Craig asks, but if the paper did nothing wrong then Arod probably doesn’t have a legal leg to stand on.

      And good luck getting the reporter to give his source. We’ve seen multiple cases of them going to jail rather than give up an informant.

      • Craig Calcaterra - Dec 20, 2010 at 12:23 PM

        I don’t think the paper is breaking the law. And I’d never ask Schmidt to give up his source even if I do think that the court has an interest in knowing his source because he or she violated its order. Let them figure out another way. And to be clear: if I had a source telling me that he knew the names, I’d do everything within my power to tell them I didn’t want to hear them so that they/I wouldn’t be placed in that position.

        For me this is all couched in “shoulds.” I think the NYT can legally print this stuff. I question whether it should. And to preempt possible responses from others, I do not think my merely presenting this as a “should” is chilling to free speech. Papers ask themselves these questions all the time. Sexual assault victims’ names, identify theft stories, etc., are all situations in which papers withhold information on their own accord for ethical purposes.

      • churchoftheperpetuallyoutraged - Dec 20, 2010 at 12:36 PM

        For me this is all couched in “shoulds.” I think the NYT can legally print this stuff. I question whether it should.

        Would you be for the papers printing information, akin to the sexual assault example, while leaving out identifying details or would you prefer them not print an article at all? The former I can see, because
        it’s the paper’s responsibility to print the news. However I’d be worried about the latter because it invites the possibility of a slippery slope of a paper not printing information that may be pertinent to their lives (watergate for instance)

  4. Jack Marshall - Dec 20, 2010 at 1:29 PM

    Craig, I think you are 100% correct on this. The Times has a right to be an information launderer (taking information revealed in knowing violation of legal or ethical obligations and making it “pure” by publishing it under the guarantees of the First Amendment), but the responsible, fair and ethical stance would have been to refuse to publish the leaked names. “The public has a right to know” is the usual line used to justify such conduct, but the fact is that the public never had the right to know any of these names.

  5. PanchoHerreraFanClub - Dec 20, 2010 at 2:39 PM

    Craig, I agree 100% with you on this one. The NYT should not have printed the names. Printing the names ruined some players careers. There is no way for a player to defend himself after his name came out. There were no “B” samples to guard against false positives. While 104 is a small sample size, one would expect about 2 to 6 false positives given a false positive rate of 3 per 100.

  6. Old Gator - Dec 20, 2010 at 5:16 PM

    Why are we even discussing etticks with reference to sports journalism? How veddy atta-vistick, my deahs.

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