‘Can you?’ vs. ‘Should you?’ A secret recording of a Wisconsin government phone call that inspired five random thoughts for journalism students

In trying to explain ethics to my intro writing students, I often fall back on the line that, “Ethics basically deal with things that aren’t illegal, but can get you in a lot of trouble, anyway.” Another way we separate law and ethics is the line between, “Can I do X?” vs. “Should I do X?”

This concept came into focus in a strange way last week, as Wisconsin continued to put the “fun” in “dysfunction” at the state government level:

MADISON – Republican legislative leaders lashed out Wednesday at Democratic Gov. Tony Evers after his staff secretly recorded a May 14 phone conversation over how to respond to the coronavirus pandemic the day after the state Supreme Court struck down the state’s stay-at-home order.

The recording and the reaction to it all but ensures a permanently broken relationship between Evers and Republicans who control the Legislature. The two sides have rarely gotten along since Evers was elected in 2018 and Wednesday’s episode was characterized by GOP leaders as unprecedented.

Republicans referred to the recording effort as “Nixonesque,” referring to former Republican President Richard Nixon’s desire to record everything involving him at the White House. I’m uncertain if this is irony, self-loathing behavior or something just randomly laughable, but I’m at a loss for words while watching a Republican use the name of a former two-term (almost) president as an insult. I guess I’m also pretty sure that the relationship between Evers and the Republicans was permanently shattered like Waterford Crystal thrown off the top of the Empire State Building waaaaaaay before this incident.

In any case, here are a few random thoughts for journalism students that don’t delve into the political grandstanding in this case that makes soccer “injuries” look honest by comparison:


THIS SHOULD HAVE BEEN PUBLIC ANYWAY: Bill Lueders, president of the Wisconsin Freedom of Information Council, made the best point about this situation. Why the hell was this a “private phone call” among three key governmental officials?

(Lueders) said recording a conversation without alerting the other parties isn’t illegal in this state, but is in bad form — and that the nature of the meeting should have pushed the three to talk publicly instead of privately.

“I wouldn’t do that as a journalist, to record someone without them knowing,” Lueders said. “On the other hand, I don’t know what would have been said in that meeting that needed to be kept private.”

Maybe if this is a public meeting, none of this becomes an issue in the first place. Sunlight is said to be the best disinfectant, and it would appear to be so in this case.


RECORD EVERYTHING, BUT BE HONEST: According to the numerous accounts I’ve read, Richard Nixon was paranoid as hell and believed people were always out to screw him over. If you have spent any time as a reporter in this day and age, I bet Tricky Dick starts making a little more sense in that regard.

I can’t tell you how many times I have written something I got from a source, quoted a source or provide information I got about a source, only to have the person who gave me that information tell me I was wrong. And I did most of my work before the era of people in power calling everything they don’t like “fake news.”

Thus, my advice to students? “Record everything.”

That said, recording is one of those key areas where law and ethics diverge. According to the Digital Media Law Project, 38 states plus the District of Columbia have what is known as one-party consent. This means that if you are on a phone call with another person, you may record it legally without letting that other person know. The other 12 states have two-party consent, which means BOTH parties on the call must know and agree to the recording before it happens. (You can read more on your state’s rules and what happens if your recording across state lines etc. here.)

The law says, “Record them all. Let God sort them out.” Ethics, however, would dictate that secretly recording people kind of undermines trust, as Lueders pointed out. This is why I always tell the students to be up front about their recording. Tell the source, “I would like to record this interview. Is that a problem?” In most cases, sources will be fine with it.

Some folks will be reticent, so I tell the students to explain WHY they want to record the interview: “I want to make sure I don’t make a mistake,” or “I want to be sure the quotes are accurate,” or “I want to protect both of us.” However, the students want to explain it is fine, but at the end of the day, it’s about having a permanent record of what occurred so if the stuff hits the fan, and suddenly everyone is pulling a “Shaggy” on this situation, you have a complete record of what happened.


STILL, WATCH OUT FOR YOU FIRST: I totally get why the person recorded the conversation: The Evers administration and the Republicans out here who will rule the assembly in perpetuity, thanks to gerrymandering the likes of which we’ve never seen before, are constantly in a bombastic struggle to define “truth” for the public. I’ll read one story one day and think, “OK, they’re doing X” only to read the next day some recasting of the situation that makes me think it was a dream.

In the end, if you know someone’s going to try to screw you, get a permanent record of reality.

Honestly, I’ve recorded people without their knowledge. I don’t say this with a great deal of pride, but this is what happens when you run a crime beat in an area where people felt no compunction about calling you up to scream at you about coverage. After I almost got smoked once, I considered it an insurance policy.

The first time this happened, a person called the main desk at the newspaper, asking to talk to the person in charge of crime stuff. The staffer sent the person to me, and the caller spent at least five minutes screaming at me about a story we ran. It turns out her kid/brother/friend/whatever was “illegally arrested” (a phrase I still love to this day) and what we wrote needed to be retracted RIGHT NOW.

After mentioning places that I could put my head, which defied the laws of physics, and questioning the lineage of my parents, this woman was not happy with my decision not to acquiesce to her demands. She wanted to speak to my boss.

I gave her his number and he got a much different treatment: A lot of “sir” mentions and some polite questions and so forth. She mentioned how horrible I was and how I said horrible and unspeakable things to her. Of course, my boss brought me in to ask me about this. He bought my version of events, but I swore it would be the last “he said/she said” thing I dealt with at that paper.

I hooked up a tape recorder to the phone and kept it at the ready. When I got the next call transferred, questioning my approach to crime news, I recorded it. After my boss got the complaint about me, I offered to let him listen to the recording. Eventually, that became our routine:

Him: “I got a complaint that you were horrible to (SOMEONE) who was complaining about (WHATEVER I DID).”
Me: “Uh… No… Would you like to hear the recording of the call?”
Him: “Fair enough…”

Still, the most important moment of recording I can recall came when I was an adviser at Ball State University. The school was in the middle of a provost search when one of the three candidates pulled out. The remaining two candidates were relatively polarizing: The president clearly favored one and the faculty and staff favored the other.

Just to back up her notes, the reporter borrowed my recorder for the phone call with the president. She asked the obvious question if the president had planned to restart the search. I can still remember to this day hearing the reporter as, “Is that even an option in your mind?”

The answer was no. We have two qualified candidates and we’re moving forward.

That was the story we ran, and then all hell broke loose.

Faculty were outraged, figuring they were going to get screwed, so they started talking. The president, clearly not wanting this to be a mess, decided the best thing to do was throw the newspaper under the bus.

She issued a statement via email to faculty and staff that basically said, “Look, the kids at the newspaper try really hard, but they’re kids and they screw up stuff. I never said we wouldn’t restart this. In fact, that’s what I’m doing right now. So, relax and don’t worry about the mistakes of children.”

Her problem was, we had it recorded. She didn’t know.

To be fair, the student SHOULD have told her we were recording her, and that was a lesson we made clear in the post-game analysis with the reporter. Thus, we gave the president a chance to do the right thing. The editor-in-chief called her and told her that she made us look stupid and that we were asking for a retraction. We’d let it go if she fessed up. She immediately went back to her talking points about the reporter screwing up and how this happens with cub reporters and how she wasn’t mad, but she had to set the record straight.

At that point, he let the cat out of the bag. She paused, said some unprintable things and then asked, “Are you recording me now?”

I remember thinking, “No, but I wish we were…”

In the end, she held firm. We ran her email alongside a transcript of the phone call along with an editorial on the whole thing. She was displeased, but that was on her. If the primary complaint someone has about you recording them is that you’ll report exactly what they said and they don’t like what they said, I have very little sympathy for them.

This leads to the next point…


IT’S NOT OUR FAULT YOU’RE A DIPSTICK: The reason we know about this recording in the first place is because the Milwaukee Journal-Sentinel put in an open records request for everything associated with a coronavirus meeting between the two sides. Once they asked for everything, including recordings of the meeting, the recording came to light.

(Good side note: In open-records requests, ask for stuff that MIGHT exist, even if you don’t think it does. You might get lucky. In this request, the reporter apparently asked for any recordings of the meeting when requesting documents from Vos as well and got nothing because he didn’t record anything. The request sent to Evers yielded the tape. Short version: It never hurts to ask for stuff.)

Evers did the right thing in turning over the file, even though I’m sure he really didn’t want to. It had to be like that scene in “Silence of the Lambs” when the moth flies out of the basement and basically the killer knew he was screwed. The game was over at that point, and he basically had to brace for impact.

The recording was what I would have expected of divorced parents who were forced into a dinner with their kid at graduation: A lot of people talking past one another, some pointed jabs and the essential “How much longer must we endure this fool?” vibe. One thing that did pop up as a story was Assembly Speaker Robin Vos blaming immigrants for the coronavirus:

MADISON – Assembly Speaker Robin Vos blamed the culture of immigrant populations for a coronavirus outbreak in Racine County, according to a secret recording of his meeting last month with Gov. Tony Evers.

“I know the reason at least in my region is because of a large immigrant population where it’s just a difference in culture where people are living much closer and working much closer,” the Rochester Republican said of an outbreak in Racine County.

Of course, Vos didn’t like the story that pointed this out and tried to move the discussion back to how shameful Evers was for recording the call. He also tried to spin this to make it about how he had a deep concern for people of color who were disproportionately suffering the effects of the virus.

(Hang on… I’m dealing with the vertigo caused by that spin… OK… Phew…)

At the end of the day, neither group looks good and Vos has to deal with what would appear to every Latino group the MJS contacted as a dog-whistle, anti-immigrant blame-fest.

What’s important to remember, however, if you record something as a journalist and someone says something stupid, it’s not your fault.

This is one of the few cases where people aren’t blaming journalists, because the journalist didn’t make the recording. Vos comes the closest, in accusing the paper of not keeping its eye on the ball with the whole “Nixon-esque” recording. However, usually, in a story in which someone records something (telling the source or not) and it turns out the source says something horrible, the outrage is more over the recording or the choice to run the story than it is the horrible thing the person said.

It shouldn’t be, and you shouldn’t feel bad about it.

Your job is to report the facts, getting as close as you can to the purity of truth, in an attempt to inform your readers of something important. Rarely are those revelations something pretty and happy, so someone will be upset.

If a state rep or a city council member or a school board president says something offensive about race, gender, sexual-orientation, socio-economic status or some dude named Chad’s little brother, and you think your readers need to know about it, that’s called editorial discretion. Use it to guide you in your choices.

ALWAYS ASK, “IS THE JUICE WORTH THE SQUEEZE?”: In looking at ethical behavior, I sometimes find myself being a pragmatist more than I would like. Still, that’s because I know I have to live in the real world and not in an ivory tower, subsisting on creeds and mottoes. What I “can” do versus what I “should” do often comes down to a weighing of my options and examination of the ramifications.

(This situation is weird, in that the journalists didn’t make recording, so whatever they picked out of the open record was less on them than it was on the person making the comments and the staffer who recorded it.)

If I record a source, and the source knows the information is on the record, and the source knows I’m recording it, I pretty much have carte blanche to do as I see fit. That’s where editorial discretion comes in. What am I trying to do here?

If I run a story based on one part of an hour-long interview that makes a long-time and trusted source look bad, will I be cutting off my nose to spite my face? Probably. Some folks would say that ethics demand the unveiling of any ill that could showcase the true nature of public figures. Others would say that, short of watching that source kill a guy, you’re not ratting him out because sources like that are hard to find.

This is where I spend more time bean-counting than I might otherwise like. Is one flashy story worth not getting another story again from this source? Is my ability to tell people important things, thanks largely to this source, going to be undermined by me taking a shot across the bow at this guy? Am I protecting a person I shouldn’t be protecting, primarily because he makes me job easier?

This is why journalists who have ethics tend to drink like fish and chew Xanax like Tic-Tacs.

As a journalist, what you do is up to you (and to that extent, your publication/boss/editor/whomever runs the show), so you need to decide for yourself if the juice is worth the squeeze.


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