Whether to publish Newtown 911 tapes: A good question but not the best one
Even before Newtown, Conn., released recordings Wednesday of 911 calls made during last year's mass shooting at Sandy Hook Elementary School, news organizations were wringing their hands admirably. MSNBC decided it would not broadcast them. As did NBC, whose president, Deborah Turness, told The New York Times "I listened to the tapes. I can’t see any editorial imperative.”
NPR reporter Guy Raz couldn't even see why outlets should be in the position of making that call:
I get freedom of information. I don't get the value of releasing traumatic 911 calls from Newtown. Can someone explain it?
— Guy Raz (@nprguyraz) December 5, 2013
A headline on the Atlantic perfectly evinced the uncomfortable questions the recordings forced members of the media to face: "Is There Any Responsible Way to Publish the Sandy Hook 911 Calls?" it asked.
But all of this second-guessing overlooks something else that's uncomfortable: It took a judge's ruling to put that decision in news organizations' hands.
Connecticut enacted a measure this spring (it was drafted in secret) that blocked public access to "Any record created by a law enforcement agency or other federal, state, or municipal governmental agency consisting of a photograph, film, video or digital or other visual image depicting the victim of a homicide, to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim's surviving family members."
The 911 calls were still to be available, but Connecticut fought the release of the Sandy Hook recordings, which the Associated Press had requested. Connecticut State's Attorney Stephen J. Sedensky III argued they were, among other things, "relative to child abuse," which Judge Eliot D. Prescott wrote was a "far too expansive" reading of a state law regarding privacy.
It's not nice to be in the position of demanding access to documents that reflect a gruesome, inexplicable event like Sandy Hook. "We all understand why some people have strong feelings about the release of these tapes," AP Executive Editor Kathleen Carroll told the news cooperative. "It's important to remember, though, that 911 recordings, like other police documents, are public records. Reviewing them is a part of normal newsgathering in a responsible news organization."
The Newtown 911 calls don't appear to give anyone reason to think law enforcement's response on Dec. 14, 2012 was lacking. In the recordings, AP reported, "dispatchers were heard making three calls to Connecticut state police that apparently rang unanswered. But state police had already been dispatched to the school by the time those calls were made, according to a timeline and call log supplied by Newtown officials."
But what if the recordings had turned up a problem? Sedensky's report on the Sandy Hook shootings didn't list the names of the children Adam Lanza murdered. That's a perfectly reasonable and defensible decision. It also mentioned Lanza's name in the body text only once, referring to him as "the shooter" thereafter.
That's a strange decision for a government to make. After the shooting in Aurora, Colo., the comedian Patton Oswalt begged members of the media not to report alleged shooter James Holmes' name. Such debates pop up quite often when there's a mass shooting. Publishers should have them. Governments, as a rule, should not.
Sedensky's report takes on the mammoth task of trying to shed some light on Lanza's motives: We learn that "mental health professionals who saw him did not see anything that would have predicted his future behavior." Confronted by Lanza's behavior at school, including "extreme anxiety and discomfort with changes, noise, and physical contact with others," officials recommended he get tutoring, desensitization and medication.
But Lanza "refused to take suggested medication and did not engage in suggested behavior therapies." Could the state have intervened more? That's a question an investigative reporter may be more motivated than the state of Connecticut to answer.
This to me is the central issue about public records: should the government or the press decide what information the media can explore?
There is a nasty undercurrent to this debate, though, that has nothing to do with mainstream press organizations. After the shooting, conspiracy theorists, too, descended on Newtown's town clerk, demanding information they thought would help prove that the shooting was a hoax. News organizations are no longer gatekeepers for public information. "The best thing journalists can do is to add more information to these tapes so they bring greater context and understanding," Poynter's Kelly McBride told Emily Richmond for that Atlantic article.
Much of lawmakers' concern about public records in the case was based on something that might happen, Connecticut attorney Dan Klau argued in a blog post in October: Although "graphic crime scene photographs of victims, including homicide victims, have long been subject to disclosure under the FOIA," he wrote, "I can’t find a single instance in our state of such a photograph being disclosed to the public pursuant to an FOIA request and then being published in a newspaper or on the Internet."
Klau links to an interview with filmmaker Michael Moore, in which he said a Fox News reporter stirred up a rumor that he wanted to publish photos of the dead children. Klau writes:
Some people may argue that even the theoretical possibility of crime scene photographs of homicide victims being released is unacceptable. I understand and respect that argument, although I disagree with it. I don’t want to see the Sandy Hook photographs published or available to the world by clicking a button on a computer. I don’t want the Sandy Hook families to suffer more pain. But what I want even less is a new law that categorically forbids public access to crime scene photographs of victims generally. I don’t want a Fox News-generated false rumor that led to a legislative frenzy to result in bad long-term public policy that has ramifications far beyond the Sandy Hook tragedy.
After The (Westchester County, N.Y.) Journal News published a map of local gun owners last year, state legislatures across the country clamped down on access to those records. Louisiana Gov. Bobby Jindal signed a law that imposed jail time and fines on anyone who dared "intentionally disseminate for publication" information about people who had concealed gun permits.
The Journal News story was no great victory for a free press -- the map it published did nothing of great value with the information, and after a firestorm of criticism and threats, the paper removed it, saying it was a reaction to a drastically tighter law New York passed because of its story. "While the new law does not require us to remove the data, we believe that doing so complies with its spirit," the paper told Poynter in a statement.
“I see this as a pretty clear case of prior restraint,” New Orleans journalist Steve Beatty told Poynter about Louisiana's law in June. As such it may not survive a court challenge. But as Jacob Gershman reported in The Wall Street Journal, other states are accomplishing something close to prior restraint when it comes to 911 calls: "As of last year at least eight states explicitly prohibited the release of audio recordings, making few or no exceptions.," Gershman wrote. In North Dakota, you can inspect them but not make copies. In Wyoming, you need a court order.
I know that for a lot of people, choosing sides between the press and the government is a grim task. But it's worth asking: Who would you rather make decisions about how information gets out?