Pierre Omidyar’s fog of transparency and the Miranda rights of journalism

Paul Carr
March 6th, 2014

I’ve pretty much made a career out of admitting, and learning from, my mistakes. Some of those mistakes have been huge and potentially unforgivable, others minor and probably understandable.

On Sunday night, while talking to Erik Wemple from the Washington Post, I made a mistake that I hope falls into that second category.

Wemple had called to ask some follow-up questions about Mark Ames’ story on Pierre Omidyar, published on Pando last week. One of those questions was exactly how long we had given Omidyar Network to comment on the story.

That’s where I made my mistake: Breaking my general rule of never starting an on the record reply with “I think” or “probably” rather than actually checking the facts before speaking. I told Wemple I couldn’t give him an exact time but I thought it was probably a “small number of hours.” I also added a (perhaps too honest) caveat that we’d deliberately given First Look less time than normal to comment on the story. Wemple quoted me accurately in his post, including my caveat…

“Honestly, I was thinking, ‘I don’t trust [First Look’s Glenn] Greenwald one bit.’ He would have a response up before we even post our thing,” says Carr.

It wasn’t until the next day, when Wemple emailed to ask for a follow-up comment, that I actually checked my sent items and realized I’d screwed up. For a dull technical reason (short version: I cannot operate basic technology) the request for comment I was certain I’d sent to Omidyar late on Friday morning had actually left my outbox at 12:22pm, only about ten minutes before our story went live. Still prior to publication, but not the “small number of hours” that I’d originally told Wemple. Mea maxima culpa.

Since quitting drinking, 1600 days ago, I’ve worked very hard to always be honest and fair in my dealings with people. And when I screw up, even in small ways, I take pains to admit it. So, duly embarrassed, I spoke to Wemple, admitted my error, apologized and gave him a couple of quotes to use in his follow up piece. He was very  decent about the whole thing. I even tweeted at Omidyar, acknowledging that we’d given him less time to respond to this particular story than I would have liked.

Unfortunately, my correction and apology came too late to prevent Omidyar and First Look staffer Glenn Greenwald from seizing on the error as an example of Pando’s gross unfairness to them. Despite the fact that this was four whole days after Mark’s story was published, and they previously hadn’t said a word about the time they were given for comment, suddenly First Look was outraged at Pando giving them such a short time to respond. Omidyar sent a dozen or so Tweets about it, while Greenwald shared the Wemple correction with his 338k followers as an example of our lack of “journalistic honesty“. Omidyar tut tutted to Sarah on Twitter that First Look was “Happy to discuss substance with any reporter that actually wants to talk while they’re working on a story, not after it’s done.”

To say that Omidyar and Greenwald were acting disingenuously is a a towering understatement. Omidyar and First Look have never, ever, responded to any of Pando’s requests for comment before publication, no matter how long we’ve given them.

Here, just for fun, is a breakdown of Pando’s reporting about First Look and the amount of time before publication we gave the company to respond…

By my reckoning, that’s an average of five hours per story. The response every time: silence. Not so much as a “no comment.”

Meanwhile, on First Look’s Intercept blog there are numerous stories by Greenwald in which there is no mention whatsoever of him having requested comment from his own subjects. It’s clear that First Look frequently chooses not to ask for comment before publication. But don’t take my word for it: Greenwald himself twice wrote on Salon that he was exasperated by claims that journalists should always ask for comment pre-publication…

“[W]hat [a subject] would have said to me had I called them are all totally irrelevant.  As I have told the multiple establishment journalists over the years who raised the same “you-didn’t-call-me-first” complaint:  with media criticism, what a journalist claims after the fact about what they published doesn’t really matter…

(Here’s an amusing irony: one of the people Greenwald was being criticized for not contacting pre-publication was Pando’s Mark Ames.)

The right not to remain silent

“Reaching out for comment” has become American journalism’s version of Miranda rights. Like Miranda, the practice of a reporter formally requesting a response from the subject of a story is a way to help ensure that subjects are treated fairly, in accordance with established procedure. Yes, in some cases, those subjects are hostile, and there’s always a chance that by tipping them off to an upcoming story, we’ll give them chance to issue a spoiler or (even more frustratingly) to leak the whole thing to a rival publication. But, as with Miranda , that’s the whole damn point: we ought to be fair with bad guys, even if we suspect they won’t be fair with us.

There’s a more important comparison to Miranda, though, and it’s one we saw play out this week as Omidyar and Greenwald — despite never, ever having commented to Pando on a story — suddenly claimed that they were all ready to spill this time. If only we’d given them the chance.

Lawyers just love it when cops don’t read suspects their rights, and rightly so. It’s a really effective way to suggest bad faith on the part of investigators and, in many cases, to get damning evidence suppressed. Likewise, in journalism, not giving sufficient time for comment, even if you know there’s zero chance of getting a response, hands a gift to subjects with something to hide. Suddenly, rather than responding to the damn story, they can cry “journalistic [dis]honesty” and then continue to stonewall. (Note: Omidyar hasn’t disputed a single fact in our reporting on him.)

To the best of my recollection, only twice in Pando’s history has someone involved in a story complained that we didn’t give them sufficient chance to respond. The first was Lanny Davis (a man who defends murderous dictators and perjuring presidents) and the second was Pierre Omidyar this week.

So what to do?

Shortly after I’d spoken to Wemple, Sarah and I talked about the Miranda rights comparison and came to a decision. At Pando, we  want want to hold ourselves to an even higher standard than that to which we hold others. And so it’s time for us to formalize our previously ad hoc approach to requesting comments: To draft our own journalistic version of Miranda, and to put it on the record for subjects, sources and readers alike. Our hope is that it will not just allow readers to decide for themselves if we’ve played fair with subjects, but will also provide a paper trail to avoid giving an easy smokescreen to folks like Omidyar and Greenwald.

Here’s what we came up with…

Pando will give any subject of a story at least two full working hours to respond to a story before publication. At the end of each story we will not just say if we requested comment, but we’ll also give the exact amount of time before publication that we did so. As ever, we will continue to update stories after publication as we receive additional comment.

The only exceptions to this will be in the case of short Ticker posts which simply link to others’ reporting, fast breaking news, or when there is no clear way to contact the subject of a story in a timely manner. In those last two cases, though, we will make clear to readers what attempts were made, and how long prior to publication they were made. If a subject tries to spoil our story by leaking it elsewhere, we’ll reserve the right to publish early — but, again, we’ll disclose that fully at the end of the piece.

You can see an example of how that will work on my latest piece about Greenwald…

I reached out to both Glenn Greenwald (~10hrs ago) and Pierre Omidyar (~2hrs ago) for comment about the contents of the video. Neither had responded at press time. I’ll update this post if they do.

We’re implementing the policy straight away, and it should be evident on all relevant stories published from Thursday morning.

As far as I can tell, this timestamping of comment requests isn’t something that any other publication — in old or new media — does.  But we’d love to see other publications adopting a similar policy.

To that end, yesterday afternoon I decided once again to try to get a comment from Omidyar. Specifically I asked him for clarification of First Look’s current policy on requesting comments, and whether he would pledge in future to always make public the amount of time that First Look reporters give their subjects to respond.

Given we’d never once had an email response from First Look, and to make absolutely sure that our emails weren’t going missing, Sarah asked Pierre to clarify the best contact address for the company. Omidyar confirmed on Twitter that the address we were using was correct.

Honestly, I was pretty sure that I’d get a response this time, if only because Omidyar would want to make a point that First Look was acting in good faith. Sure enough, two hours later, I received a reply: my first ever from Omidyar Network!

It wasn’t quite what I expected…

From: Christopher Keefe
Sent: Tuesday, March 4, 2014 18:40
To: Paul Carr
Subject: Re: First Look’s comment policy

Hi Paul –

Thank you for your email. Omidyar Network is a completely separate organization from First Look Media.

You may email the First Look Media team directly with your inquiry at media@firstlook.org (contact email is on their website).

Best regards,

Christopher Keefe
VP, Marketing & Communications
Omidyar Network

Yep, Keefe was claiming that the email we’d been using —  the one Omidyar himself had given us for First Look questions — was wrong.

No matter. Despite being pretty sure that the founder of eBay was trolling me at this point, I duly resent my request to the new email address. As, it seems, did Keefe — because almost an hour later, I received a second reply, this time from First Look’s Sarah Steven.

Before I share that reply with you, remember that Pierre Omidyar had himself insisted on Twitter earlier that day that he was “Happy to discuss substance with any reporter that actually wants to talk while they’re working on a story, not after it’s done.” Remember that Omidyar and First Look had told us to “try again next time,” insisting that they would have be delighted to talk to Pando if only we’d given them the chance.

Here, then, is Steven’s response…

From: Sarah Steven <sarah@firstlook.org>
Subject: Fwd: First Look’s comment policy
Date: March 4, 2014 at 7:29:21 PM PST
To: paul@paulcarr.com

hi Paul, Christopher Keefe from Omidyar Network forwarded me the email below as it doesn’t look like FLM made it onto the CC line. At any rate, I wanted to write and thank you for the opportunity to comment on the story currently in progress and mentioned further below. We don’t have anything to add so we’ll decline participation. Thanks for getting in touch.

Kind regards,
Sarah Steven

So there you have it.