More than 15 years ago, an ethicist and I wrote in the Los Angeles Times that not all leaks are unethical.
We wrote because of three leaks that some thought violated ethical principles, irreparably damaging the republic (or, in one case, a big company). However, like so many seemingly end-of-the-world leaks, these would be forgotten quickly.
US Rep. Mark Foley, R-Fla., would resign because of inappropriate emails linking him to congressional pages. Congress survived.
Critics said that a leak of part of the National Intelligence Estimate would help terrorists. Didn’t happen, as far as we know.
A third leak suggested that a member of Hewlett-Packard’s board had provided secret company information to a reporter. A reconfigured HP survives.
Despite the short lifetime of most leaks, they still make headlines. One, a headline on an Advocate editorial May 6, said that “everyone” should oppose the leak to Politico of the first draft of a US Supreme Court decision about abortion.
Actually, everyone should praise the leak.
It was perfectly ethical based on the standards that my co-author, Kirk O. Hanson, then head of the Markkula Center of Applied Ethics at Santa Clara University, and I proposed in 2006.
We said that a leak must be important enough to publish if the information is classified or otherwise restricted. We said that publishing a leak is worth serious discussion first if a potential leaker has a responsibility to protect the information. We said that personal matters often should remain confidential (a point many made upon the release of Foley’s emails).
Finally, we said that the most important judgment is whether the public would benefit from a leak and whether harm could result.
This leak was, in fact, worth the betrayal even though the leaker may well have had a responsibility to protect the information. The reason: Abortion remains one of the most galvanizing issues in the country. Think about what you’ve been discussing at dinner during the last few days.
On the other hand, this leak in no way compromised anyone’s personal information (unless you consider that millions of women fear that overturning Roe v. Wade would do just that).
Finally, the public definitely does benefit from this leak, which gives us an early, significant clue to the preliminary thinking of the court’s majority, which we almost never get.
As Marty Baron, former executive editor of The Washington Post said, deciding to publish the leak wasn’t a tough call: “This seems pretty simple,” Baron told The New York Times. “They were provided a document. The document was authenticated to their satisfaction, and they published.”
Which raises a question that a student in my media-ethics class brought up after the leak: Why does everyone meekly accept that the Supreme Court should work almost entirely in secrecy?
The other branches of government don’t. For example, the president’s assistants compile a publicly available daily list of everyone with whom he has met. In Congress, almost every legislative session is open to the public unless it deals with classified information (which does not mean abortion regulations).
Peter G. Fish of Duke University wrote in the William & Mary Law Review in 1967, “Of America’s political institutions, the United States Supreme Court is the most remote and insulated.”
In short, the truly ethical position in this case would be to praise the leak — and to consider shining sunlight onto the most secretive branch of government, the US Supreme Court.
Jerry Ceppos, former dean of LSU’s Manship School of Mass Communication, teaches media ethics there. Contact him at firstname.lastname@example.org.