Thursday, July 28, 2005

The Agony of DeFede, Part II

By now everyone knows that Jim Defede was fired by the Miami Herald. The reason given was that he tape recorded a phone conversation he had with the late Art Teele. Teele walked into the lobby of the Herald and blew his brains out. In the wake of the suicide, Defede told his employers that he had recorded conversation(s) with the embattled, ex-commissioner Teele. Parts of the conversation were off the record and Teele was not told that he was being recorded. The Herald says that it fired Defede because his actions were illegal and unethical.

Now, I'm not a fan of Mr. Defede. He has been consistently against Cuban-Americans and I rarely agree with anything he writes, but that's entirely besides the point. I think in firing Defede, the Herald, embodies journalistic hypocrisy. If the conversations that were recorded, were part of an investigation to a White House cover up like Watergate, then I'm sure they would not have fired him.

Reporters sometimes have to do things that aren't technically legal. Many a reporter have gone to jail rather than reveal an anonymous source and their employer usually stands behind their illegal action. I don't know why Defede recorded the conversation, but I assume it was to ensure accuracy in anything he wrote or investigated subsequent to conversation. Just because the call was being recorded doesn't mean that Defede was going to make Teele's off-the-record comments public. And Teele may have even assumed the conversation was being recorded though Defede never expressly told him it was. So in my opinion, Defede was basically scapegoated, for what reason I don't know.

According to Editor & Publisher:

Florida is one of only about a dozen states that require both parties to consent to the taping of a phone conversation, legal experts said. The state's statute says that "all parties must consent to the recording or the disclosure of the contents of any wire, oral or electronic communication in Florida. Recording or disclosing without the consent of all parties is a felony" (unless it is a first offense, then it is a misdemeanor.)

The statute also states that "consent is not required for the taping" of someone "who does not have a reasonable expectation of privacy." That provision has caused some legal experts to question whether it could apply to a reporter interviewing a public official.
It appears that perhaps Defede did not violate state law after all.


Juan Paxety said...

I don't know of anyone who really believes that interpretation of the final paragraph.

It's usually interpreted to mean you don't need permission if the talking is recorded publically - a politician giving a public speech, someone standing on a public street screaming, people who are interviewed while a microphone or tape recorder is plainly stuffed in their face, the recording on a telephone answering machine - these are things where a person doesn't have a reasonable expectation of privacy.

As I see it, anyone who works in journalism in Florida for any period of time knows you don't make secret audio recordings - DeFede knew better

Val Prieto said...

The fact that Teele himself styated he was speaking off the record proves there was a reasonable expectation of privacy.

gansibele said...

"Reasonable expectation of privacy" for Teele obviously didn't apply to Defede, since he was talking to him in the first place. What it means in this case is that Teele would expect deFede not to make his comments public or share them with anyone else. But if Defede was taping the conversation for his own use -e.g. having a better recollection later, if Teele wanted to speak on the record- then he didn't violate his privacy.

What if Defede was taking notes instead of taping? That isn't illegal, right? (maybe it is). And if he published anything based on his recollection, the only thing that would suffer was his future credibility with sources.

My take is that because Teele killed himself in the lobby of the Herald, they wanted to counteract negative PR ("the media's hounding drove him to do it") by appearing to be beyond reproach ethically. Defede had a soft spot for Teele -he was his hatchet man in the mayoral campaign against Penelas and has defended him numerous times- maybe Defede himself would have made the charge. Last thing the Herald needs is more negative publicity.

Val Prieto said...

Am I the only one that thinks "off the record" means "do not record?"

Anonymous said...

"Off the record" means that it is not to be published in any way. I would think a "journalist" would know better; then again, DeFede was no journalist, he's a hack.

Robert said...

Val, I agree with you. That's been one of my main points regarding this case.

Henry "Conductor" Gomez said...


The last paragraph is simply a quote from Editor & Publisher. I'm not an attorney and I couldn't tell you whether the exception applies. But it seems that at least some experts have doubts.


Off the record, doesn't neccessarily mean "stop recording." It just means "don't attribute this to me." If you were explaining a large complicated conspiracy to me but didn't want me to attribute anything to you, You might go off the record while I continued to record (with your knowledge) to get all the of the details.

If I were a reporter, I'd want the recording for the same reason I'd record an on-the-record conversation, to remember all of the details. Obviously if Defede made Teele's "off the record" remarks public, he'd be violating journalistic ethics. But we don't know what he was going to do with the tape. Perhaps he was going to follow leads Teele gave him without attributing anything to Teele. We'll never know now, I guess.

gansibele said...

The meaning of "off-the-record" is a moot point - Defede didn't publish anything. Conductor's point is that the Herald is being hypocritical when they say they fired Defede because he committed a crime. It is true that journalists do things that are technically crimes all the time and papers encourage them to do it. For example, the Herald has published investigative reports of drug deals where a journalist has been present, and the journalists didn't alert the authorities (that's being an accessory, btw). Journalists are almost never charged for things like this and when they do, papers go to bat for them in the name of the "public's right to know".

Juan Paxety said...

Gansibele - what DeFede did is not "techincally" a crime - it is a crime in this state. Off the record has nothing to do with it.

When a person, without getting permission, pushes the record button, he commits a crime. What he does with the recording has nothing to do with it.

Media outlets do not encourage people to commit this crime - at least none of them I've worked for. All have had managers tell me, and I've done the telling when I was a manager, that you do not make secret audio recordings in Florida. Journalists are not charged for things like this because they seldom do it. And media outlets don't go to bat for the journalist - they fire them. I've known at least one who was fired.

Conductor - I'm not critizing you - I'm critizing Editor and Publisher. They should know that position is foolishness.

Henry "Conductor" Gomez said...

We'll see what happens. Defede is supposedly going to meet with the State Attorney's office. If he's guilty, we'll know soon enough.

Anyway Juan, you still don't address the double standard that exists when some media outlets and even the journalism establishment such as the journalism schools encourage reporters to keep their sources confidential even in the face of a subpoena. That's violating the law. That's contempt of court, but newspapers don't fire their reporters for that. So sometimes the media is in technical (or actual) violation of the law but they do it because they feel a greater good is served. But then they get pick and choose what situations they like and don't like. That's the double standard.

You can't say "we fired Jim Defede because what he did was illegal" but in a hypothetical situation say "we stand behind Jim Defede in his being in contempt of court for not revealing his sources to a criminal investigation."

Juan Paxety said...

Keeping a source secret may or may not be improper. Many states have reporter shield laws.

If you're talking about Judith Miller, she's dealing with the federal courts - there is no federal shield law. She was brought in to testify - she refused - she was found in contempt of court. That's not a crime. It's not illegal.

However courts have the power to enforce their orders to testify by imprisoning the witness until she agrees to testify. Judith Miller could walk out of the jail cell this afternoon if she would testify.

At the same time, what she has done is not a crime. Contempt is a civil remedy. She has not been given a prison sentence. When it's all over, she will not have a criminal record.

While the two may look the same - the person is sitting in a jail cell, under the law they are quite different.

I personally don't agree with shield laws in criminal matters, but a lot of folks don't agree with me. The New York Times obviously thinks Miller is doing the right thing. Whether it's right or wrong, it's not a crime.

DeFede committed a crime. Donnah wants me to blog on this - maybe I should.

gansibele said...

Paxety, that's my point: "off-the-record" has nothing to do with it.

I'm not arguing whether or not he committed a crime even tough it's open to interpretation and apparently there has been at least one challenge to the statute that was found valid in appeals court. My comment about what he does with the recording was in response to the argument that he violated Teele's privacy - he did not (at that time) since Teele was talking to him in the first place.

And I didn't say media outlets encourage this particular crime - but they do encourage others, if not explicitly, at least implicitly by publishing the story. There's the double standard. A while ago there was a story in NYT magazine about crystal meth labs and I was wondering how the journalist gets away with admitting he visited many labs posing as a consumer, witnessed the fabrication and dealing of the drug and why the DA doesn't just charge him as an accessory. Not to mention other crap like breaking and entering, illegal surveillance, harrassment, etc; which journalists engage in all the time.

Any journalist knows you do what you need to get the story and your editor rewards you for it.

Val Prieto said...


I disagree. Off the record means "not for publication" which, in and of itself, expressly implies an expecation of privacy.

Henry "Conductor" Gomez said...

"Many states have reporter shield laws."

Many states also have single party consent laws with regards audio taping. In fact 38 states do. If Defede were in one of those states (I know if my aunt had balls she'd be my uncle) it wouldn't be a crime. You have to admit that the crime would have been worse if he publicized the content of the call which he didn't do.

And Val, I'm sorry but "off the record" means I want you to know this but I don't want it publicized or my name attached to it. Otherwise why talk at all? Somebody gives off the record info so the reporter can act on it (albeit in a different way than in response to "on the record" comments"

Example, "hey Val, off the record, while I was stealing a car last night, I saw a guy get murdered on Biscayne Blvd."