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Terms of Concealment

How transparent can a news shop be when it sends off former employees with hush money?

By Michael Miner

August 3, 2007

"GOD, I'D LOVE to talk to you -- but I can't." I've been hearing that one for years, in language inflected with anger, shame, or a sense of the absurd. There's no code of omertà in journalism, so when the bosses want silence they buy it.

Last week I commented on my blog on transparency in media. The Tribune had just run an article on a study done by a research group at the University of Maryland that measured this fashionable virtue by five criteria: "willingness to correct mistakes, receptivity to reader criticisms, and openness about ownership, editorial policies and conflicts of interest." The group's conclusion was that when it came to transparency, journalism needed more of it.

The Tribune wasn't one of the 25 news shops graded, but former public editor Don Wycliff, who was quoted in the piece, believed it would have scored well. He wondered, though, whether the criteria the group had chosen were the right ones.

True transparency, I proposed, is about a lot more than correcting trivial mistakes. It requires a clear look at the sausage making. In the case of a presidential endorsement, for instance, it means explaining the position of everyone on the editorial board, identifying the publisher or CEO who ultimately made the call, and confessing the reasons for it that didn't show up in the endorsement.

True transparency, then, is not only too much to hope for but probably more than we're entitled to. Let sinners come clean to their priests. Newspapers are entitled to their quirky little mysteries.

But later, it occurred to me, there's another kind of transparency. A genuinely transparent paper would feel it owes us an explanation whenever a familiar byline disappears. Have you ever read a writer for years, in the Tribune or anywhere else, and then noticed that he or she wasn't there any more? Did the writer retire? Find a better job? Get fired? Maybe the writer dropped dead at the keyboard? (No, in that case the paper would have run a really sweet obit.)

Several senior Tribune writers recently retired early with buyouts. There was little fanfare. I read one farewell column; another I heard about was written but spiked. And these, by and large, were amicable good-byes. When a journalist is sent packing, or treated with such calculated contempt that a resignation becomes the only option, the last thing a paper wants is attention. In its idea of a perfect world, cast-off journalists catch the 2 AM bus out of town.

Sometimes a banished newsie doesn't want any more attention paid to his humiliation than his bosses do. But sometimes he'd like to speak up. "You're in a humiliating, powerless position," a writer with a familiar Chicago byline once told me after his paper took away his job. Aching to turn me loose on the outrage of his departure, in the end he didn't say a word for attribution. Even more than vengeance, he wanted to come away with enough money to go on paying his bills.

To keep employees tossed out of the tent from turning on their heels and pissing back inside, news shops (even the Reader) offer terms. And what journalists find so obnoxious about these terms is that after dedicating their careers to the First Amendment they're bribed and bullied to surrender their own right to free speech.

For instance, here's some of the boilerplate a former Tribune employee had to agree to in order to collect a buyout:

"Non-Disparagement. You will not in any manner whatsoever denigrate, disparage, or otherwise convey or cause to be conveyed an unfavorable impression of the Company to a third party or parties."

And here's more:

"Confidentiality. Except as required by law, a court or governmental authority, you will keep the terms of this Agreement strictly confidential, and agree that you will not disclose its terms to anyone other than your legal or financial advisor(s), relevant taxing authorities, and spouse. Further, to the extent to which information contained in this Agreement is disclosed to any other person, you will obtain from them the promise not to disclose this information unless required to do so by law, a court or governmental authority."

Money is a terribly hard thing to turn down. It almost can't be done. "Nondisparagement and confidentiality clauses are typical in all employee/employer settlement agreements," says Sheribel Rothenberg, a lawyer whose practice focuses on negotiating such agreements. "The purpose is to really end the matter without recriminations. Everyone moves on. Does it fly in the face of the First Amendment? Well, nobody makes them sign the agreement. It has to be lucrative enough. For 50 cents, nobody signs. For $50,000, you look around and say maybe it's OK."

Most companies have separation plans that guarantee all severed employees some sort of payout. "They're going to get X," Rothenberg says, "but if they sign they get X plus Y." And Y is significantly more.

So silently into the night the disgruntled go, clutching their hush money. And when it suddenly hits you that you're not reading old whatsisname in the Tribune any more and you wonder what the story is, rest assured you'll never hear a word of it -- not unless the vanished writer makes the remarkable decision not to sell his silence because his babies don't need milk that much.

I asked Craig Rosenbaum, the attorney for the Chicago Newspaper Guild, if he knew of journalists who stood on that particular principle. He wouldn't give me a name, but an hour or so later a former newspaper reporter called me, someone who for personal reasons wanted to remain anonymous.

"I felt very strongly that I'd done an exemplary job and I was wrongly dismissed," this journalist said. To sign something that would make it impossible to say so would, in the reporter's view, be to act like there was "something to hide" when there wasn't. Being at a suburban guild paper, the reporter had a third alternative: arbitration.

It dragged on more than a year. The reporter can't describe the eventual settlement, having signed away the right to talk about the money. But money's one thing and reputation's another, and by rejecting the disparagement clause the reporter hung on to the freedom to defend it.

School board members, the head of the local planning commission, even a chief of police testified at the arbitration. It was something of a civic event, and the reporter's old paper didn't print a word.

Transparency?

Beaming at the Bears

First week of Bears camp and everybody's fabulous. Tribune sportswriter John Mullin on July 31: "Beyond his dramatically improved passing and new level of strength and conditioning loom two franchise-level questions: Can Kyle [Orton] emerge from the preseason as the No. 2 quarterback ahead of Brian Griese? And in the event that Rex Grossman does not work out, can Orton possibly play his way into becoming the franchise quarterback of the Bears' future? The answer to both is . . . yes."

Sportswriter David Haugh in the same edition: "Nobody reported to camp more serious about improving than Rex Grossman. Some of his throws make ones thrown by Brian Griese or Kyle Orton look and sound like Triple-A fastballs in comparison."

Superstitious Minds

When death comes, the press finds its threesomes wherever it can. The Tuesday Tribune carried a front-page box titled "Farewells," with directions to the obits inside the paper for Ingmar Bergman, Bill Walsh, and Tom Snyder, who were certainly closer in death than in life. The Sun-Times's Richard Roeper began his column the same day, "It was a dark trifecta for those who believe celebrities die in threes." (Roeper went on to say he doesn't.)

The fly in the ointment was the death -- too late for the editions but not for the radio stations Chicago woke up to -- of Michelangelo Antonioni, a director whose stature can be compared to Bergman's. Did this make four? Or two?

A Freelance Film Critic

The Tribune's tributes to Bergman and Antonioni were written by Michael Wilmington, "special to the Tribune." That's Trib-speak for freelancer. Say what? Hasn't Wilmington been a Tribune movie critic for the past 14 years? Geoff Brown, associate managing editor for features, told me Wilmington resigned a few weeks ago. I asked why. "You'll never get me to discuss why anybody comes or goes," Brown said. "Maybe comes."