Anonymity Because—A Commentary by Ian Ayres ’86
The following commentary was published in The New York Times on April 29, 2008.
By Ian Ayres ’86
In 2004, a bunch of newspapers (including the New York Times) instituted a new policy requiring that articles, when possible, should explain the reasons why the paper granted a source anonymity.
The new policy has created a great empirical opportunity — because in practice the required reason is given after the phrase:
“[source] was granted anonymity because … ”.
The impact of the policy was immediate. In 2003 there were only 730 A.P. articles with the phrase, but by 2005 there were 9,451 articles using the phrase.
A simple search for “anonymity because” opens up a treasure trove of information on what journalists think constitutes a valid excuse for granting anonymity. Other bloggers have collected a variety of examples:
1. Spoke on condition of anonymity for fear of retribution. (WaPo)
2. Spoke on condition of anonymity because the investigation is ongoing. (WaPo)
3. Spoke on condition of anonymity because of the sensitivity of the subject. (Hartford Courant)
4. Spoke on condition of anonymity because of the delicacy of the negotiations. (SF Chronicle)
5. Spoke on condition of anonymity because of government rules. (Boston Globe)
6. Spoke on condition of anonymity because he was not authorized to speak publicly. (Herald Tribune)
7. Spoke on condition of anonymity because of the subject’s sensitivity. (Post Intelligencer)
8. Spoke on condition of anonymity because the decision is not final. (Times (reg required))
9. Spoke on condition of anonymity because they feared retaliation from the government. (Business Week)
10. Spoke on condition of anonymity because he remains an informal adviser. (San Diego Union)
11. Spoke on condition of anonymity because many people do not know she smokes. (New Haven Register)
12. Spoke on condition of anonymity because Mr. Sharpton wants to announce the decision to his supporters himself. (Times (reg required))
13. Spoke on condition of anonymity because he was not authorized to divulge results. (Edmonton Sun)
14. Spoke on condition of anonymity because the discussions were confidential. (Dallas News)
15. Spoke on condition of anonymity because they were not authorized to talk to the media. (Casper Star Tribune)
16. Spoke on condition of anonymity because a formal statement has not been released. (Billings Gazette)
17. Spoke on condition of anonymity because he did not want to be seen as speaking for the president. (Detroit News)
18. Spoke on condition of anonymity because he did not want his identity and presence here to be known by criminals. (Brisbane’s News)
And it is easy to find more recent examples just by typing “anonymity because” into a Google news search. You’ll quickly find:
A Google spokeswoman, who spoke on condition of anonymity because of the company’s policy.
[A] person with direct knowledge of the [Delta/Northwest combination], who demanded anonymity because they were not authorized to speak for the airlines.
The public editor for the Times has commendably called for more transparency in this kind of disclosure.
But to my mind, the biggest deficiency is the failure of journalists to distinguish between legitimate and illegitimate retaliation that might be visited upon an anonymous source.
The strongest rationale for granting a source anonymity is simply to protect the source from illegitimate retaliation or harassment for providing information.
For example, in one article “half a dozen tribal elders from Panjwai . . . spoke (about Taliban attacks on police posts) on condition of anonymity because they feared retaliation from the insurgents.” Illegitimate consequences can also be visited by employers who might retaliate against an employee whistle-blower.
But newspapers routinely grant anonymity to employees who misappropriate employer information. Often times these grants are given to sources who could be legitimately fired or disciplined for violating their fiduciary duty to their employer. The sources who steal — I mean misappropriate — employer information aren’t willing to directly disclose because they know they could be fired for the disclosure.
I’m all in favor of having a broad definition of whistle blowing. I think it is appropriate for both the law and newspaper-anonymity to protect workers who blow the whistle on corporate misdeeds.
But I don’t think that newspapers’ anonymity policies should facilitate employee malfeasance. For example, in 2006, it was reported:
N.B.A. executives — commenting on why Knicks head coach Larry Brown was really fired — were “granted anonymity because they are not authorized to comment on another team’s operations.”
Or last month:
“[P]eople briefed on the negotiations [concerning the Clear Channel buyout] were given anonymity because they were not authorized to discuss the deal.”
Misappropriation represents a big proportion of anonymity grants. I recently had a research assistant code just over 200 grants and found that 40 percent of anonymity grants were unjustified misappropriations (i.e. where the source was trying to avoid legitimate retaliation). In another 34 percent, the justification was unclear (for example, the employer might have allowed the employee to disclose information anonymously); and only 26 percent were clearly justified.
I, for one, would prefer not to read articles with misappropriated information. We’re all trading in a type of stolen goods.
One way to improve the situation would be for newspapers to only grant employees anonymity if the employee’s disclosure would be protected by the law’s definition of whistle blowing.
Indeed, it might even be a good idea to force newspapers that use anonymous employee sources to take on the employee’s potential liability for disclosing employer information. An employer who would have been able to sue an employee for an unauthorized disclosure could instead sue the newspaper for damages.
The newspaper could avoid liability by convincing the court that the disclosure was not in fact a misappropriation — because an employer doesn’t have a legal right to keep certain information secret. The first amendment is not offended by limiting newspapers’ ability to print misappropriated information.