Tag Archives: Writing tips
by Chris Roush
Paul Martin retired at the end of July from The Wall Street Journal, ending a 53-year stint at the business newspaper.
He had spent the last 27 years running its “Style & Substance” report, which dissected Journal stories for their word usage and phrasing.
Martin, who joined the Journal in 1960 as a copyreader, became the paper’s copy desk chief in 1972 and compiled and edited “The Wall Street Journal Stylebook” since its first internal publication in 1981.
He began editing the Business and Finance column in 1969, and became a senior special writer for Page One in 1975.
He moved to the national desk in 1988, where he led a team of editors working on inside features and stories for special pages. In 1989, after serving as an editor for the Journal’s Centennial Edition, he returned to Page One. He was named an assistant to the managing editor in March 1990, responsible for fielding reader complaints and editing letters to the editor, in addition to his Page One duties.
In January 1993, he was named an assistant managing editor. At the end of 2001, he retired as a full-time staff member, but retained his duties as style arbiter and awards coordinator.
In 2000, Martin received the Elliott V. Bell Award from the New York Financial Writers’ Association. The Bell Award is given each year to the person the association deems has made a significant, long-term contribution to the profession of financial journalism.
Martin, a graduate of Dartmouth College, spoke with Talking Biz News via email recently about his career and the importance of style in business journalism. What follows is an edited transcript.
How did you first get interested in journalism, or more specifically, business journalism?
I was a newspaper carrier from age 12 to 18, morning, evening and Sunday, in my hometown of Lancaster, Pa., and I never seriously considered anything but journalism for a career. I wasn’t specifically interested in business journalism until I was offered a job at The Wall Street Journal in 1960.
When I joined the copydesk, the managing editor, Warren Phillips (later chairman of Dow Jones) told me to approach business articles like all others: “If you don’t understand them, it’s your job to make them understandable.” I think that’s still good advice, but the challenge is greater because Wall Street and its arcana have become ever more arcane over the years. Does anyone really understand credit default swaps?
What attracted you to The Wall Street Journal back in 1960?
The Journal at the time was one of the few papers anywhere with journalists in the top corporate positions. That was important to me and many other journalists. Also, the Journal promised me I wouldn’t have to stay in New York if I decided later I wanted to work at another bureau or production plant. I didn’t think I’d like New York in the long term, but I was so wrong. And the editors in New York were unbelievably nurturing for young journalists.
As the Journal in that era was becoming a national newspaper with international ambitions, the energy crisis and Watergate took center stage. Business news was viewed in the larger context, but it remained the Journal’s bread and butter. Every term or concept was to be made clear to the lay reader, (Airline articles even condescendingly and redundantly defined a revenue passenger mile as “one paying passenger carried one mile.”)
Industry statistics and companies’ earnings reports were covered far more assiduously than today, filling page after page of the paper, and great care also was taken, for instance, to make one company’s profit calculations as comparable as possible to those of other companies. Presentations in press releases were view with suspicion.
How did the paper teach better writing and better style?
As at many papers, I think, it was largely a matter of osmosis. But the Journal had some of the best writers, particularly on page one, and they took time to work with reporters on their drafts. Bill Blundell, one of the paper’s best writers, also gave seminars on feature writing. And bureau chiefs and department heads took time to tutor newcomers.
When you became the copydesk chief in 1972, what were your daily responsibilities?
The copydesk chief oversaw the 12 or so editors who cleared the copy for the entire paper except for the page-one features and the opinion pages. The chief did the hiring and firing and was the night “slot” editor, checking the work of all the “rim” editors before it went to the typesetters.
Why did you decide that the Journal needed its own stylebook?
Aside from needing a reference to define some business and financial terms that weren’t included in other general style guides, we had a host of rules that were peculiar to us – we didn’t abbreviate Texas, Maine and Idaho after city names, for example. These rules had been passed along orally for decades. Training new copy editors would be far simpler with a stylebook, I realized, so I got to work on the Journal’s first one. But compiling it and getting it cleared by the managing editor took years, so, as luck would have it, I had moved on to the page-one desk before it was published in 1981.
There were a lot of major business stories in the 1980s such as LBOs and inflation and the 1987 crash. Did that make style and usage more important?
Style and usage are constantly evolving, which is a good reason for having the stylebook online. Business writing is perhaps more prone to permutations than most, but consistency of style is always important. The faster the economy and the markets change, the more editors need to strive to remain on the same page.
What do you see as the biggest improvements in business journalism style and usage in the past 50 years?
Technology, technology and technology.
Fifty years ago, an old fellow called Pop Harris, wearing a green eye shade, was still calculating the Dow Jones averages and entering them by hand in ledger books as he had for ages at the Journal headquarters, at 44 Broad St. in New York.
But the Journal even then was becoming a pioneer in introducing new technology, going from hot type to offset to facsimile production that used satellites to transmit the paper’s pages to remote printing plants across the country.
Still, the Journal was one of the last big papers to computerize its newsroom. The top editors feared that computers would short-circuit the layers of editing the Journal was famous for and greatly weaken the final product. That fear was well founded, especially in the short term. Fewer eyes on reporters’ drafts meant more unplugged holes in the stories. But with constant adjustments, the electronic system became a great benefit, speeding up and smoothing out the process and helping to standardize style and usage.
What still needs to be improved upon?
Too much reporting on business and the economy is analysis or conjecture masquerading as news. Distinctions should be kept clear. Clear sourcing is also important. Readers need to know as specifically as possible who is providing the information in articles, to help them discern its credibility.
What are your biggest pet peeves in business writing today?
In a word: jargon. Everyone and everything has become iconic, everyone is going forward instead of looking ahead, every executive is tasking everyone to transitively grow the company.
In three other words: acronym alphabet soup. Quick, what is AMPAS? It is the Academy of Motion Picture Arts and Sciences, of course, but in an article mentioning it, “the academy” is the better second reference.
Numeracy problems also pop up like whack-a-moles — an assertion, for example, that something is 10 times smaller than something else. If it is one factor smaller, it is nonexistent. What is usually meant is that it is one-tenth as large as that other thing.
The biggest crime involving numbers, however, is mixing up millions, billions and trillions. It leads to more corrections than any other category, it seems. There’s no magic cure, but recognizing the hazard is a start.
Then there is the casual use of superlatives like “biggest” without providing the measure. Is a company the biggest in capitalization, sales, or revenue or what? And can we prove it. If there is any doubt, just call it one of the biggest. This simple step can save millions or billions of corrections.
Does the general American public know more about the business world today than they did in 1960, and what does that mean for a business journalist?
The average reader is probably more sophisticated today, but unless you are writing for the Harvard Business Review, the business-page writer would do well to follow the advice I was given in 1960: If you don’t understand it, it’s your job to make it understandable.
In this five-part series, we’ll look at some of the challenges that young business journalists face in today’s media landscape. A common theme running through all five installments is the recognition that avoiding errors is a journalist’s first responsibility. News moves faster, farther and wider than ever before, and given the ever-increasing volatility of markets, the effect of incorrect news reporting can have shattering consequences: not just on the share price or business prospects of the company being written about, but on the media organization that faces legal liability and the exorbitant cost of legal defense. The third installment is about how the use of confidential sources – despite a shield law – may create liability for the reporter or publisher.
Few journalists – and more importantly, few thoughtful readers – can doubt the important role that confidential sources play in journalism. From Watergate more than 40 years ago to current revelations that the president of the United States may have lied to the public and press about the extent of National Security Agency spying on U.S. citizens, the law historically recognizes that confidential sources are crucial to the democratic function of a free press:
“Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.” Zerilli v. Smith, 656 F. 2d 705 (DC Cir. 1981).
At present, congressional and Senate committees are working on passage of a federal shield law, which, if properly drafted, will allow journalists (including bloggers doing journalism) to refuse to disclose their sources in most federal cases. Many states already have some form of shield law, and for those of us who believe in the press’ role as public watchdog, that’s a good thing. But reporters and editors – as well as their lawyers – would do well to remember that even with a shield law in place, the use of confidential sources has to be subject to careful review and thoughtful consideration past any shield law. The failure to do so can have disastrous consequences for journalists and publishers.
“TRUST ME, I’M A JOURNALIST”
When a confidential source is utilized to publish a story that creates a defamatory assertion or implication, the fact that you may not have to disclose your source is only half the analysis. If you are sued for libel, and the plaintiff alleges clearly enough that you got it wrong, the burden shifts to you to show that either: a) the sued-upon fact isn’t wrong; or b) if it is wrong, you will need to convince a finder of fact that you had the appropriate basis for relying on a source.
Now ask yourself how the following would sound in court: “Ladies and gentlemen of the jury, I know I said Mr. Jones was a swindler. I have a source that told me so. I promised the source confidentiality, so I can’t tell you who it was. But trust me, I’m a journalist.” This is straight out of the Lionel Hutz playbook.
While it’s true that in varying degrees, journalists have a right to protect source confidentiality, the law recognizes that plaintiffs who allege damage to reputation also have rights. The notion of being able to face and question your accuser and his or her credibility is rooted in due process and fair play. This has led to the development of what some academics call “the no source presumption.” This means that in many cases, if a reporter facing a libel suit refuses to disclose his or her source, the jury is allowed to infer – or may be instructed by the judge – that the reporter never had a source at all.
This played out in a California courtroom in Dalitz v. Penthouse International, Ltd., 168 Cal. App. 3d 468 (Cal. App. 1985) where reporters Jeff Gerth and Lowell Bergman (the latter of “60 Minutes” fame) accused a handful of people of being “mobsters, gangsters and members of organized crime” and implicated the plaintiffs “in the Watergate scandal, nationwide bank failures, securities frauds totaling some $50 billion, criminal misuse of Teamster Pension Funds and other swindles of many kinds.”
The reporters refused to disclose their sources, and instead of holding the reporters in contempt (California has a shield law), the trial court instructed the jury to assume that there was no source for the sued-upon allegations other than those disclosed in the story itself. The appellate court upheld this presumption, noting that:
“Without the disclosure of these sources, we are left to believe merely on faith that the reporters in fact had confidential sources and did not simply embellish and expand upon the information contained in the voluminous mass of books, articles and newspaper clippings with which they have so copiously provided us.” Id.
THE “NO-SOURCE” PRESUMPTION EXPLAINED
Aside from judicial skepticism about reporters’ honesty, courts are sensitive to the notion of a person who alleges reputational harm being able to face one’s accuser. Moreover, in libel cases, the ability to question the state of mind of a reporter and to examine from whom and how they gathered their facts is a matter of due process for the plaintiff.
In DeRoburt v. Gannett Co., Inc., 507 F. Supp. 880 (D. Haw. 1981) a Guam-based newspaper accused the president of Nauru of having made improper loans and having inappropriate relationships with various political entities. The newspaper refused to disclose the identity of the confidential sources. The federal court addressed the inherent unfairness to the plaintiff saying:
“The media defendant cannot have it both ways: he cannot enjoy the protection afforded by the [The First Amendment] and at the same time enjoy a privilege that prevents the plaintiff from obtaining the evidence necessary to carry that burden. Were the media defendant allowed to have it both ways, he would have absolute license, and the libel plaintiff would have no recourse in the courts.” Id.
Instead of holding the reporters in contempt, the court used its discretion in applying the “no-source presumption” and held that:
“When a defendant in a libel action, brought by a plaintiff who is required to prove actual malice […] refuses to declare his sources of information upon a valid order of the court, there shall arise a presumption that the defendant had no source. This presumption may be removed by a disclosure of the sources a reasonable time before trial.” Id.
EXCEPTIONS TO THE RULE: SOURCE PLUS INDEPENDENT REPORTING
This is not to say that a story relying on confidential sources can’t be defended without giving up the source, but it takes skillful and expensive lawyering, and more importantly, pulling this off will usually require convincing a judge that the reporter did not rely solely on whispers in the dark. In other words, a solid foundation of good reporting and fact checking can support this kind of story and keep the sources’ identity confidential.
This was the case in Trump v. O’Brien, 29 A. 3d 1090 (NJ App. Div. 2011), when Donald Trump sued New York Times journalist Tim O’Brien for allegedly underestimating Trump’s net worth in his book “TrumpNation.” Trump, suing in libel, sought disclosure of the identity of three confidential sources utilized by O’Brien, his notes regarding his interviews with those sources, and various other non-confidential materials relating to O’Brien’s research, writing and editorial processes. O’Brien refused to disclose the sources, and the appellate court found that both New York and New Jersey’s shield laws applied and that O’Brien had no duty to disclose the sources.
Trump argued that this was unfair, and that O’Brien’s relying on sources that Trump couldn’t cross-examine ought to be evidence of the knowing falsity or reckless disregard for the truth (“actual malice”) that public figures are required to prove. The court instead looked at the totality of the reporting, and found that the passages in question were not solely the product of repeating defamatory statements from unnamed people.
The court took notice of the fact that O’Brien did not merely take the anonymous sources at their word but in fact the re-interviewed his confidential sources prior to publishing their net worth estimates. O’Brien also showed the court notes of his meetings which the court found significant, because all three interviews showed “remarkably similar estimates of Trump’s net worth, thereby suggesting the accuracy of the information conveyed.” Id.
According to the court, O’Brien made efforts to verify independently the information gleaned from his sources, and he did not adopt the low estimates of net worth set forth by his anonymous sources as fact. Instead, the court held, O’Brien utilized their lower figures as an illustration of the spread in estimates of Trump’s wealth, while suggesting that, in his own view, Trump’s net worth was far less than he claimed it to be. As a result, the case was dismissed, the court holding that: “[There was no] evidence to support Trump’s conclusion that the confidential sources utilized by O’Brien were fictitious, and no evidence to suggest that O’Brien’s reliance on the confidential sources suggested actual malice on O’Brien’s part.”
In short, careful and skeptical use of confidential sources, backstopped by independent fact checking and analysis may convince a court that your story, although derived from confidential sources, did not blindly adopt their statements as fact. That way, the confidential sources are not so central to the plaintiff’s case that the protections of the shield law should be surmounted by a sense of fairness due the plaintiff.
CHECKLIST FOR CONFIDENTIAL SOURCES AND THE SHIELD LAW
• Is your confidential source making a statement upon which you may be sued? If it is a potentially defamatory allegation, you should consult your newsroom lawyer prior to publication.
• Have you exhausted efforts to independently verify the information that your source gave you? Consider going back to your source and asking if there is any help they can provide.
• Remember that even if your state does have a shield law, they may not be applied in federal court. Don’t be overly emboldened by the shield law: ask yourself “if I have to prove my story in court without giving up my source, am I able to do so?”
• The promise of confidentiality is often considered a binding contract, and sources who are burned have the right to sue a publisher or reporter for financial compensation for lost wages, business opportunities and other expenses. The only way to avoid this possibility is to obtain a written waiver from the source allowing you to name him or her in the event you are sued.
• Never sign an agreement offering to provide your source legal defense in the event they are sued for talking to you. Courts have held this to be evidence of an improper motive on the sources’ part and a form of journalists paying people to say defamatory things. Consult a newsroom lawyer before having any conversations with sources in this regard.
Charles J. Glasser, Jr. spent the last 12 years as Global Media Counsel to Bloomberg News, responsible for litigation, ethical newsroom issues and pre-publication review, and was responsible for handling the work of more than 2,100 journalists on a 24-hour basis. Prior to joining Bloomberg, he represented a wide variety of news organizations including The New York Post, Readers’ Digest and NBC News. Prior to becoming an attorney, he was a journalist for 16 years. He is the author of “The International Libel and Privacy Handbook” and is currently a consultant on media law and corporate communications issues, and can be reached at email@example.com or via www.charlesglasser.com.
by Chris Roush
Northwest Florida Daily News business editor Dusty Ricketts has a plea to the companies in his area: Let me come work for you.
Ricketts writes, “Thankfully, I haven’t been fired as the business editor of the Daily News, but I am starting a new series that will run monthly in the business section.
“Other than a short stint of working on Destin Harbor scheduling fishing trips for some of the charter boats and a disastrous attempt at trying to sell lawn care over the telephone, my entire professional career has been spent in the newsroom of one newspaper or another.
“It’s time to change that, at least a little.
“This is my pitch to the business owners and managers in Okaloosa, Walton and Santa Rosa counties to put me to work.
“Let me come in and work a half day or full day for you. After it’s over, we talk about things like how I did and if I am hirable, and then I could come back to the comfort of my newsroom and write about the experience.”
Read more here.
by Chris Roush
Michael Teague of Equities.com writes about the latest overused buzzford in financial journalism.
Teague writes, “But clichés can metastasize beyond their descriptive purpose, and financial journalism and commentary are no less replete with examples than any other faction of the media. This is especially evident in instances where a particular turn of phrase has become so in vogue, so thoroughly over-used by so many different people that it almost becomes meaningless.
“Presently, the best example of this is the word ‘taper.” Shortly after stocks began their epic ascent at the start of the year, investors began to worry that the Federal Reserve would get the idea that the economy was improving, and that the time might well be nigh for it to put an end to its $85 billion-dollars in monthly bond purchases. For the Central Bank to do this all at once would clearly be disastrous, however, and so the end of quantitative easing had to be a gradual process, a ‘tapering.’
“This is not to say that many other terms are not also being used to describe the Fed’s inevitable and unenviable task of weaning the economy off of its support. ‘Drawing down,’ ‘winding down,’ and ‘pulling back’ are all commonly used as well; it’s just that ‘taper’ has emerged the official word. And while just about everyone who follows stocks probably knows that ‘taper’ refers to a process of gradually reducing asset purchases, there is an implicit connotation to the word that makes it particularly suited to its task. Indeed, the word ‘taper’ is often used by addicts to describe the gradual process of reducing one’s depedence on a drug.
“So it may not be an accident that ‘taper’ has become the preferred expression, as it is a nicer way of saying that that financial markets are going to have to go through a process of withdrawal from their dependence on the Federal Reserve’s open wallet. This also puts the pun ‘taper tanrum’ into perspective, as we are likely familiar with that scene in the movie, itself perhaps a cliche, in which a character frantically tears his or her house/apartment to bits looking for their stash, like Frank Sinatra’s character in ‘The Man With The Golden Arm.’”
Read more here.
- See more at: http://www.equities.com/editors-desk/economy-markets/wall-street/the-cliches-of-late-financial-journalism#sthash.ZXKwIoMz.dpuf
by Chris Roush
Wall Street Journal managing editor Gerard Baker sent out the following announcement on Wednesday:
I’m pleased to announce that two of our top editors, both steeped in the traditions and style of The Wall Street Journal in its various formats, will take over responsibility for the Style & Substance blog, a beacon for the proper use of English in our journalistic pursuits.
Bill Power, the Journal’s day editor, will join with Jennifer Hicks, who oversees the U.S. homepage team, in this important endeavor. Bill and Jennifer are receiving the reins from one of the great Journal editors, Paul Martin, who founded Style & Substance more than 25 years ago and published his final issue earlier this month.
Bill joined the Journal in 1984 on the old Monitor Desk and has since filled a number of roles, including reporter, Heard on the Street columnist and first editor of the Markets Desk, dating to its creation in 2008.
Jennifer joined the Journal in 2004 as an online news assistant. She spent five years as an editor working evenings for WSJ.com and also served more than three years as the London-based editor of the European website.
News editor Jim Winston will continue his role of updating the online stylebook.
I want to extend our heartfelt thanks to Paul Martin for his exemplary stewardship of Style & Substance and for his many other contributions to the Journal and Dow Jones. Paul joined the Journal in 1960 and held a multitude of important positions in the newsroom, including chief of the national copydesk, senior special writer and assistant managing editor.
Paul’s enduring legacy can be read and observed in the output of the Journal every minute of every day. We all owe him an irredeemable debt.
by Chris Roush
The Albuquerque Journal in New Mexico is launching a new feature called “Scam of the Week” aimed at helping readers guard against fraud, identity theft and other unsavory business practices.
“And depending on the type of scam, readers will be directed to contact the appropriate state or federal agencies, such as the Consumer Protection Division of the New Mexico Office of the Attorney General or the Federal Trade Commission.
“Readers also will be encouraged to contact the Journal directly if they hear about or become the target of what they feel to be a bogus business offer. At that point, we’ll do our best to check it out and report back on its legitimacy. So watch for ‘Scam of the Week,’ starting Sunday in the Money section.”
Read more here.
by Chris Roush
Andy Crestodina of Copyblogger.com interviewed New York Times small business editor Loren Feldman about his story style preferences.
Here is an excerpt:
Loren, you prefer not to write list articles. Why is that?
I think list articles tend to be overdone and to have limited credibility. I’m not sure it’s convincing to just say, “here are the five things you need to do to improve your SEO.” I think it’s much more valuable to take more of a case study approach — which allows you to see more of the person’s thinking, what works and what doesn’t. I’ve found that things rarely go perfectly on the first shot — but maybe that’s just me.
Are those the only two kinds of articles? Stories and lists?
No, there are other options — including conversations and Q&As. But I think it’s more the principle. Regardless of the format, I like to approach it a little bit as if it were a case study: here’s the problem, here’s what we tried, here’s what worked and what didn’t.
Why do you think list headlines are so popular?
We’re all looking for answers. It’s very tempting to click. I do it myself. (But I’m not always glad I did.)
I understand that journalists are under pressure to drive traffic to their content. Is this affecting the quality of reporting?
There have always been commercial pressures in journalism, and I suspect there always will be. It’s not always a bad thing to pay attention to what consumers of journalism actually want. But it’s nice to know there are still a few places that will put resources into important stories without worrying too much about the traffic.
Read more here.
by Chris Roush
Mandy Locke was born and reared in Shelbyville, Tenn., where she started her journalism career as a high school student covering the Tennessee walking horse industry.
After graduating from the University of Virginia, she worked at the Vineyard Gazette in Edgartown, Mass., before joining The (Raleigh) News & Observer in 2004 to report on the criminal justice system. She has won numerous North Carolina Press Association awards for breaking news and investigations.
On Tuesday, Locke and her News & Observer colleague David Raynor won a national Gerald Loeb Award for their three-part series “Ghost Workers.” Loeb Awards are the highest award to receive in business journalism.
Lock and Raynor revealed the competitive trick many contractors in North Carolina have used to win bids: they cheat. The series details the ways in which worker misclassification and other tax and labor law violations hurt not only construction workers but contractors and the state itself. Sadly, lax enforcement and poor inter-agency communication has allowed the cheaters to win, and has threatened the future of contractors who do play by the rules.
In part one of the series, “Cheating Businesses Make It Tough for Honest Employers,” Locke tells the story of an honest contractor who is losing business because he won’t cheat. Part two, “Injured Worker Pays for Employer’s Gamble,” profiles Clemente Hernandez Gonzalez, who was paralyzed in an accident at work but must now fight for just compensation because his employer misclassified him as an independent contractor. In the final third part of the series, “Inept Bureaucracy Lets Dishonest Businesses Win,” Locke and Raynor report that segmented information and bureaucratic “silos” have helped create a bidding environment in which cheaters win.
Locke spoke Thursday with Talking Biz News about the series and how it was reported and written. What follows is an edited transcript.
My work on these issues began earlier in 2012 and quite innocently. I was writing a story for Sunshine Week about the trend of private companies using the public records law to get information from government. One of the companies I learned about had been wrestling with the state Industrial Commission to get its database of companies and their workers’ comp policies. I wondered why, so I called the company’s owner. His business model wasn’t particularly interesting or relevant to my reporting, but he told me that he thought North Carolina had a big problem. He couldn’t account for as many policies as there should be based on the number of companies in our state requires to carry insurance.
I decided to take a look myself. We got a copy of the database, and Raynor worked hard to clean it and account for individual policies. Then, we used some simple math. There should have been at least 170,000 companies carrying it. The database revealed only 140,000. I double checked with the Rate Bureau (which collects the data) to make sure our count was accurate.
The problem of uninsured employers had plagued the Industrial Commission for years, though little had been done to stop it. I talked to current and former employees of the commission and searched their database of cases to find some compelling examples. It was a problem in plain sight.
We had a pretty good run of stories about this issue in April and May. State leaders promised reform, and the IC woke up.
During this collection of stories, I started to hear from all sorts of business people about all sorts of problems. I heard from Doug Burton, a masonry company owner. (He was highlighted in day one of the series). He was the first person to mention to me the problem of misclassification, though I’d seen the issue of subcontractors arise in some of the workers comp cases I had studied. The more I learned, the more I realized this was an important story.
I also heard from other employers who told me about the scheme of ghost policies. I got busy searching the database for a good case to explore and found the Worrell/ Gonzalez case.
I convinced Mr. Burton to let me use his business struggles to tell readers about the problem of misclassification. He eventually agreed and opened up his business records and schooled me on the masonry business.
Where did you begin your reporting?
As I mentioned above, my first entree was Doug Burton. I studied his business and spent quite a bit of time with him in those early days. I read all I could about the problem and what other states were doing to tackle it. I spoke with an expert at SAS. I knew very little about payroll taxes and profit margins in the construction industry, so my early weeks were spent talking to as many people as I could who could educate me.
How did you find contractors willing to talk on the record?
My main characters like Burton came to me because of my workers’ compensation stories. A few others, like the Baker brothers, had written a letter to the editor after some of my stories. The others I found by scouring workers compensation cases. For as many as were willing to speak openly and freely with me, many, many more weren’t. Business people like to guard their personal details, and I needed complete disclosure.
You used a lot of paystubs and other paper documents that aren’t public record. How did you get those?
After we decided to focus on masonry to explain the scheme of misclassification, sources directed me to Martin’s Bricklaying, a big player whom they had heard was misclassifying workers. Another source introduced me to a former employee of Martin’s, and that worker became my ambassador to other bricklayers. He shared pay stubs he had from time working with Martin’s and contacted old coworkers to do the same.
Because of their immigration status, some were too scared to speak, but they were willing to share paperwork through my ambassador. Also, Martin’s bricklaying had a pending workers compensation claim from a former employee. While none of those records were at a public stage at the Industrial Commission, I convinced the employee’s lawyer to share paystubs from that worker. In short, I had to navigate a network of undocumented workers, quickly earn their trust and convince them of the value of my story. Some days were particularly challenging, and I had the weight of trying to ensure I wasn’t endangering them by using them as subjects.
Some contractors were not willing to talk to you. What steps did you take to try to get them on the record?
I worked really hard to try to get the owner of Martin’s Bricklaying, and I started early in the process. I called him multiple times, and spoke to his wife two of those times. She assured me she would share a message. I got his cell phone number and left messages there. I went to his home, and while he wasn’t there, I left a message with a relative. I went to worksites where I was told I might find him.
Finally, I sent a registered letter explaining to him what I wanted to talk with him about and what the stories would say. I had the great benefit of hearing about his business in his own words from his application to become a Historically Underutilized Business with the state. I’m confident he knew I wanted to speak to him and that he had every opportunity to connect with me.
The only other contractor I can recall that I wasn’t able to capture was one of the masonry contractors who often hired Martin’s. I left multiple phone messages with his assistant on his cell and home phones over a course of weeks. She assured me he’d received the messages and would call if he liked. I also emailed both him and his son, I seem to recall.
How long did the reporting take? And then the writing and editing?
I spent most of April writing and reporting exclusively about workers’ compensation problems. In May, I started to explore these other issues. June and July were devoted to more reporting and juggling a few other unrelated stories. I spent four days writing the stories. Steve Riley and I took a week to edit, then it was off to copy editors and designers who worked for another week, while Steve and I did massive fact checking and polishing. The stories ran mid-August.
How did you use state databases to improve the storyline?
The database of employers and workers comp policies was critical to both the April stories as well as our August series. In August, we used the database to illustrate missed opportunities with state officials who do health and safety inspections for businesses. We compared OSHA records with the database to show how many possible opportunities there may have been to detect employers without insurance. I simply wanted to illustrate lost opportunities for how agencies could work together to find cheating businesses.
Also, the IC has a searchable database of opinions rendered in contested workers’ compensation cases. I found a great many uninsured cases there once I figured out some key words to use in searches.
Has anything been done about the “ghost policies”?
The governor appointed a task force after our series to explore all of these issues. That group recommended ghost policies be eliminated. That effort, though, hasn’t been spearheaded at the legislature.
What was the most surprising thing you found out in your reporting?
I was surprised at how blatantly some employers broke the laws and how easily they avoided detection. I think we all expect some of this would happen in the free market, but even with government funded projects with a fairly high level of scrutiny, this still occurred.
How did you and David work together in putting the series together?
David was a huge support in analyzing and cleaning the databases we studied. The insurance policy database was pretty dirty, so he worked hard to make sure we were making sound conclusions.
Some news researchers at the paper also contributed. What did they do?
News researchers offered help in trying to find alternate contacts (phone, email) for some of the people I needed to track down.
by Chris Roush
Bloomberg reporter Greg Stohr, who wrote the stories today about the Supreme Court rulings, had 18 different leads covering a wide variety if possibilities, reports Erik Wemple of the Washington Post.
Wemple writes, “The conventional wisdom on speed, alas, hasn’t prevented news organizations from going fast. Following the release of this morning’s Supreme Court ruling in the DOMA case, here are the finish times of some key organizations:
Bloomberg: 10:01:13 Reuters: 10:01:32 AP: 10:02:27
“All three organizations confirm those times.
“Stohr checked that the ruling said ‘affirmed.’ He checked on the headnotes. He checked how the various justices lined up on the decision. Then he and the team pushed out their take on the situation.
“Total elapsed time: 30 seconds. Says the 46-year-old Stohr in an interview with the Erik Wemple Blog: ‘I’m going to guess that it was something like 30 seconds between the time that they gave us the opinions and the time that the headlines went out.’
“That’s not to say, however, that Stohr’s work on the story started this morning at 10:00 a.m. No, he began working on the story a month-and-a-half ago, he says. Much of the work consisted of thinking through all the intricate legal scenarios that the Supreme Court could possibly concoct in deciding the DOMA case and the Prop 8 case, which also made news today. The brainstorming process, says Stohr, ultimately yielded 18 story ledes and many more headlines — all of which were ready for publication this morning.”
Read more here.
In this five-part series, we’ll look at some of the challenges that young business journalists face in today’s media landscape. A common theme running through all five installments is the recognition that avoiding errors is a journalist’s first responsibility. News moves faster, farther and wider than ever before, and given the ever-increasing volatility of markets, the effect of incorrect news reporting can have shattering consequences: not just on the share price or business prospects of the company being written about, but on the media organization that faces legal liability and the exorbitant cost of legal defense.
The second installment is “This Just In” where we’ll look at the way law, the public interest and competitive pressure all inform news judgment about when a story is ready to publish.
There are few situations quite as stressful for an editor and his or her libel lawyer than the decision to publish a story we deem “immediate.” The great preponderance of corrections – and libel suits – involve errors made in good faith but were nonetheless the product of moving so quickly that an important fact was not checked out, a source’s credibility was not checked out, or the reporter and editors simply misunderstood the facts.
Navigating this and learning good news judgment is helped by understanding a few concepts in law that explain when the First Amendment does and doesn’t protect such errors. Non-journalists often wonder why there is any such protection at all. Surely, if a household appliance maker speeds up the production line to make more toasters quickly and as a result, the toasters short-circuit and electrocute customers, that company would face liability to the harm their defective product caused.
So why aren’t news organizations similarly liable when they speed up production and make a “defective” product that causes harm?
The answer comes in two parts: 1) Newspapers aren’t toasters; and 2) The First Amendment does not remove all possible liability, it simply raises the bar for liability to attach. News organizations that make mistakes can and do face liability, but when applicable, the First Amendment makes the plaintiff establish a higher degree of proof in order to recover damages.
Newspapers are not toasters
Legal treatises have long taught that under products liability law, strict liability is imposed on the theory that “[t]he costs of damaging events due to defectively dangerous products can best be borne by the enterprisers who make and sell these products.” (See, Prosser & Keeton on The Law of Torts, § 98, at 692-93 (W. Keeton ed. 5th ed. 1984). But publications are not products, they are ideas.
This was explained in one of my favorite cases that explains this important distinction. In Winter v. GP Putnam’s Sons, 938 F. 2d 1033 (9th Cir. 1991), the publisher produced a book about how to hunt for wild mushrooms. An editing error resulted in a poisonous mushroom being described as edible, and in reliance on the book, the plaintiffs ate the wrong mushrooms, almost died and required liver transplants to survive. There’s no libel or privacy issue here, so the plaintiffs brought a products liability case against the publisher. Just like the hypothetical defective toaster that electrocutes a customer where the maker should be held responsible, Putnam ought to have been held responsible for the defect in its publication, right? Not so fast.
The Winter court began by making the distinction between products and ideas:
“A book containing Shakespeare’s sonnets consists of two parts, the material and print therein, and the ideas and expression thereof. The first may be a product, but the second is not. The latter, were Shakespeare alive, would be governed by copyright laws; the laws of libel, to the extent consistent with the First Amendment; and the laws of misrepresentation, negligent misrepresentation, negligence, and mistake. These doctrines applicable to the second part are aimed at the delicate issues that arise with respect to intangibles such as ideas and expression. Products liability law is geared to the tangible world.” Id. at 1034. (Emphasis added).
So if the tangible pages and book jacket were made of toxic material that poisoned readers, products liability law might apply, but the courts have refused to apply products liability law to ideas contained on those pages. The Winter court concluded that “Guided by the First Amendment and the values embodied therein, we decline to extend liability under this theory to the ideas and expression contained in a book.” Id. at 1037.
Why are ideas and expressions protected?
The First Amendment provides a degree of protection for ideas and expressions. Understanding why is the key to developing better news judgment. In Ollman v. Evans, 750 F. 2d 970 (D.C.Cir. 1984) the court had to determine the viability of a libel case brought by a college professor accused by veteran columnist Rowland Evans of being a Marxist, unqualified to teach, and misusing his teaching position as a tool to indoctrinate students. Although much of this case turned on whether the columnist’s statements were assertion of fact or instead pure opinion, the court began by explaining that the application of the First Amendment is a matter of “striking the balance” between protection of free expression of ideas and the protection of an individual’s interest in his or her reputation:
It is a truism that the free flow of ideas and opinions is integral to our democratic system of government. Thomas Jefferson well expressed this principle in his first inaugural address when he said, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” At the same time, an individual’s interest in his or her reputation is of the highest order. Its protection is an eloquent expression of the respect historically afforded the dignity of the individual in Anglo-American legal culture. A defamatory statement may destroy an individual’s livelihood, wreck his standing in the community, and seriously impair his sense of dignity and self-esteem. Id. at 974.
Understanding that balance is essential to knowing when the time is right to publish a potentially defamatory story. Judge Robert Bork’s concurrence in Ollman also underscores that columnists (and by extension, reporters, editors, bloggers and the like) must recognize that it is service of the public interest that animates the First Amendment’s balancing act: “The American press is extraordinarily free and vigorous, as it should be. It should be, not because it is free of inaccuracy, oversimplification, and bias, but because the alternative to that freedom is worse than those failings.”
Put another way, Judge Bork’s concurrence asks us to consider what that alternative is, in other words, what value, what critical social good does a free press and accurate journalism bring to society, so much so that it is given a degree of license to err and still avoid liability?
It’s also critical for reporters and editors to understand that the First Amendment’s high bar is neither absolute, nor always entirely applicable. See Gertz v. Robert Welch, Inc., 418 US 323, 341 (1974) (“The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.”)
In cases where the subject is a private figure, and the story is not about a matter of public concern, states may lower the bar to a “mere negligence” standard. That means in those cases that instead of just relying on a reporter’s good faith in making the error, the publication will have to prove that its staff did everything a “reasonable” journalist would have done in those circumstances. This ought to encourage journalists to look for the biggest impact not only to get more reads but to build in as much legal protection as possible.
Serving the public interest: Look for the impact
In Bloomberg News editor-in-chief Matthew Winkler’s magnum opus “The Bloomberg Way,” considerable emphasis is given to “What’s at Stake?” and it teaches that the impact or significance of an event is often just as important as explaining why something happened. Some editors, when presented with a story also call this the “So What?” approach, and rightly so. Finding and showing the “so what” in a story dovetails with the law nicely because as mentioned above, matters of public concern are afforded a degree of constitutional protection that purely private affairs may not enjoy. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US 749 (1985)
The more people a story affects, the closer to altering public policy a story gets, the greater the public interest. In my media law classes at Bloomberg News I would consistently ask journalists to ask themselves, “Will the public be smarter, safer, healthier, wealthier or wiser for your having published this story?” If a story is well-reported, well-written and can answer those questions in the affirmative, the public interest will be apparent on its face and will reduce legal exposure.
Karen Testa, East regional editor for The Associated Press, grapples with this issue every day. The competitive pressure of the new media landscape adds complexity to the question of news judgment, says Testa, a 21-year veteran of the co-operative wire service.
“Our primary concern is accuracy first,” she says, but media organizations can lose sight of that when “everybody is tweeting something as a fact, or poorly-attributed websites take those tweets and rumors as fact and it sort of morphs into common knowledge… it’s often just an echo chamber. We still have to ask ‘How do we know what we know? ‘Is it first-hand information, is the source in a position to know?” Competitive pressure is a reality, notes Testa, but it’s no substitute for being as certain about the facts as possible. For that reason, Testa and her fellow AP editors avoid summarizing defamatory allegations from other news organizations that are based on confidential sources or “people familiar” because there’s no way to check them out.
“The impact of a story or the ripples of influence that a story subject may have is an important element that adds to a report,” says Testa, who also adds that while breaking this-just-in news is always going to run first (once verified as best as possible) “given the narrower resources that newsrooms have these days, if I have five stories on my desk, and we only have resources to move three of them, I’m going to ask which ones affect the most people.”
The question of the public interest informing when and how long to hold a story is not limited to wire-service style breaking news. Those working on feature-length or investigative reporting may have additional obstacles to publication on schedule. As a legal matter, while there should be no variance in the degree of protection afforded a story simply because of its format, as a practical and atmospheric matter, the longer the lead time a story has, the higher the expectation grows that a story will be accurate and fair.
Judges and juries are more forgiving of an error made in the heat of breaking news but are less forgiving when a plaintiff can argue that in the case of a weekly or monthly magazine or even a book, the reporter had more time – sometimes weeks or months – to check things out. What in the first instance looks like a good faith error starts to look more like slovenly work.
Playing it straight matters
Weighing the public interest against when to publish is a particular challenge for enterprise and investigative journalists. Amanda Bennett, the executive editor for Bloomberg News’ projects and investigations team often manages stories that have been months in the making. As a reporter and editor at the Wall Street Journal and The (Portland) Oregonian, respectively, Bennett won the Pulitzer Prize in 1997 and again in 2001 for National Reporting and for Public Service. Given the long lead time that her team’s stories have and the often controversial nature of investigative reporting, Bennett refuses to let the convenience of a publication schedule affect her judgment of when a story is ready for publication. “You must approach the subject and allow them the chance to poke holes in what you think you learned,” says Bennett.
Emphasizing transparency and fairness, Bennett notes that younger reporters have a tendency to “hold their cards too close to the chest” by waiting too long on making the call for comment, fearing that the subject will either dish a watered-down version to the competition, start pressuring sources to recant, or launch some other pre-emptive attack on the story. “That’s the cost of doing it right,” Bennett says, and expecting honesty from her reporters, adds that reporters first approaching a story subject “should never obfuscate” what the thrust of the story is.
Unlike breaking news, Bennett notes, enterprise and investigative stories may be complicated by negotiations with the company or story subject. Deal-making is sometimes necessary, Bennett says. “Companies will often say ‘If you hold off from publishing, we’ll give you an hour with the CEO’, or they offer to provide access to documents.” In her experience, “making reasonable accommodations to include the subject’s point of view or allowing them to show you where you might be wrong is the ethical thing to do, and we are better off if this happens sooner, rather than later in the process.” At the same time, reporters should never show anyone outside the newsroom a draft of a story as part of a deal, Bennett adds.
Checklist for public interest
• Ask yourself if your reader will be demonstrably smarter, safer, healthier, wiser, or able to make more informed decisions as a result of your article.
• Show the impact on lives that the facts about which you report will have. Don’t assume that readers see how a story affects them.
• Separate merely interesting or previously unknown tidbits from genuine information that the public ought to know. The former may not enjoy a high degree of legal protection while that latter almost always will.
• Don’t let yourself be accused of sandbagging a subject. If you have been working on a story for three weeks, it’s unfair to call them for comment or denial the night before publication.
• Be honest with the subject about what you are writing, but never ever show them notes or a draft.
• Use great caution in making deals with story subjects, and use “check quotes” or “quote approval” very sparingly. This almost always gives the subject an opportunity to re-write what they said. Confer with your editor or newsroom lawyer before making any such deal: it might be a binding contract.
Charles J. Glasser Jr. spent the last 12 years as global media counsel to Bloomberg News, responsible for litigation, ethical newsroom issues and pre-publication review, and was responsible for handling the work of more than 2,100 journalists on a 24-hour basis. Prior to joining Bloomberg, he represented a wide variety of news organizations including The New York Post, Readers’ Digest and NBC News. Prior to becoming an attorney, he was a journalist for 16 years. He is the author of “The International Libel and Privacy Handbook” and is currently a consultant on media law and corporate communications issues, and can be reached at firstname.lastname@example.org or via www.charlesglasser.com.