What if you don’t tell them?

To encourage candor and discourage recanting, is it ethical to tape without letting your source know you’re doing it?

By David Green

David Green is projects editor for the Lexington (KY) Herald-Leader.

Author bio information is from the time of article submission and may not be current.

Source: FineLine: The Newsletter On Journalism Ethics, vol. 3, no. 9 (October 1991), p. 2.

This case was produced for FineLine, a publication of Billy Goat Strut Publishing, 600 East Main Street, Louisville, Kentucky 40202. Reprinted with the permission of Billy Goat Strut Publishing. This case may be reproduced for classroom and research purposes. Publication of this case in electronic or printed form requires written permission from the publisher and Indiana University. An exception is granted for use in readers designed for specific academic courses.

Ask any sports junkie and you’ll probably get agreement. University of Kentucky basketball fans are among the most fanatical in college sports.

So reporters at the Lexington Herald-Leader knew they were onto an extremely hot story when a former UK player told them that a group of fans called “sugar daddies” were plying players with cash and other gifts in violation of NCAA rules.

There was only one problem. All the reporters had were handwritten notes. They found out that wouldn’t be enough when they contacted the player again and he back-tracked. It wasn’t really surprising. While many Kentuckians had suspected that the Wildcats’ success was built on broken NCAA rules, it was an entirely different matter to put that in print for all the world — and NCAA investigators — to see.

So Mike York and Jeff Marx, the reporters who were assigned to do some hard digging on the UK team, began strategizing with me, as projects editor, and the paper’s editor, John Carroll. Jeff and Mike said they believed players would likely come under enormous pressure to recant once they were quoted in the newspaper as admitting to improprieties.

To counter back-tracking, they wanted to tape-record all interviews. And they asked editorial permission to do so without informing interviewees.

All journalists have encountered people who are inhibited by being taped, especially when they’re saying anything controversial, and our reporters were concerned that sources wouldn’t be sufficiently forthcoming if they knew a recorder was running.

But is it legal to tape people without their consent? We checked and found that the answer is yes. There is no federal law to bar anyone from taping their own phone calls without informing the other party, as long as there’s no intention to violate anyone’s legal rights. Nor is it illegal in most states, including Kentucky.

But that still left us with another concern. Secret taping often comes across as sneaky. We didn’t want to get a reputation in the community for being tricky and find ourselves with dried-up sources and mistrustful readers.

A few weeks earlier, a Herald-Leader reporter had gotten tripped up while using a recorder concealed in his satchel. The man he was interviewing suddenly asked if he was being taped and the reporter was so panicked that he denied it.

That incident had prompted Carroll to advise the staff in writing to be up front with all sources and generally not to tape interviews without people’s knowledge.

But the basketball story presented some unusual problems. We didn’t want to be faced later with a flood of lawsuits from players who came under pressure to recant. And tapes would protect us by providing indisputable evidence of what had been said.

Would this be breaking faith with our sources? No. The key point was that people would know they were talking to us on the record and were expecting to be quoted. Tapes are merely a more complete form of notes.

So Carroll decided to make an exception to his guidelines and allow interviews — phoners only — to be taped without informing the other party.

However, if any source asked whether he or she was being taped, the reporters would have to tell the truth.

Mike and Jeff started working the phones. Then, during the writing process, we discovered some added benefits of taping. We had a much richer than usual selection of quotes and the tapes enabled perfectly accurate transcriptions. To backstop the reporters, I double-checked accuracy and context by listening to every tape on which a player made an allegation of wrongdoing that we intended to publish.

The reporters eventually interviewed 33 former UK players. All but two said they knew of rules violations when they were playing. And 26 admitted that they had personally participated. Every player quoted was on tape and, with a couple of minor exceptions, all went on the record.

The resulting articles, which won us a Pulitzer Prize for investigative reporting, produced an explosive reaction in Kentucky from people who believed we had betrayed “the program.” We received hundreds of angry phone calls and letters, a bomb threat to our building, shots fired through our press room windows and 400 subscription cancellations. A poll revealed that fully half of our readers believed we shouldn’t have published the stories. Ironically, in the uproar, little was mentioned about the fact that we had taped people without their knowledge.

Jeff and Mike’s prediction at the outset came true when players began denying to other media outlets that they ever told us about breaking the rules. We simply responded by saying that we had cassettes sitting in a bank vault to prove us right.

Although we did have the unpleasant experience of being sued by one person over a small portion of the series, it’s clear that without the tapes we might have faced that many times over.

And the benefits of taping did not go unnoticed by the rest of our staff. If you walk through the Herald-Leader newsroom today, you’ll see a phone-taping rig on most reporters’ desks. But you won’t hear many sources being told that their interviews are being recorded.