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Balancing the Public Interest and a Family’s Grief

ProPublica published a video last week showing the final hours of a 16-year-old migrant who died in Border Patrol custody. The family said they should have been given a chance to see the video before it appeared. They have a point.

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Video and audio recorded by government surveillance cameras, cell phones, and police body cameras have emerged as a powerful force in accountability journalism.

ProPublica’s release of an audio tape of wailing children separated from their parents at the border last year was so emotionally wrenching, it prompted President Donald Trump to halt one of his signature policies. Our forensic analysis of videos shot in Charlottesville and elsewhere spurred federal prosecutions of four white supremacists who had brutally beaten counter-protestors. We obtained audio that revealed leaders of a heart transplant unit in Newark, New Jersey had kept a vegetative patient alive for more than a year to avoid a federal review of their survival rates. Our story sparked a federal investigation.

The public interest arguments for publishing such material are unassailable. But the handling of such recordings, which may reveal victims of violence or a person’s most intimate and desperate moments, raise ethical issues that journalism has only begun to grapple with.

We faced such a question last week after Robert Moore, a reporter working for ProPublica, obtained cellblock video of the final hours of Carlos Gregorio Hernandez Vasquez, a 16-year-old Guatemalan migrant who died in a Border Patrol holding cell. The video was unquestionably newsworthy, revealing for the first time that Border Patrol officials had not told the truth about a key aspect of Carlos’ death. (The agency said Carlos had been found “unresponsive” during an early-morning welfare check. The tape showed it was his cellmate who awoke, noticed that Carlos wasn’t moving, and summoned Border Patrol officers.)

An array of news organizations, elected officials, advocacy groups and lawyers for Carlos’ family immediately posted links to the ProPublica video, which had been edited into a visual investigation that walked viewers through not only Carlos’ final hours but the layout of the facility where he was held and the discrepancies in the official Border Patrol account. The Congressional Hispanic Caucus issued a statement demanding that the Department of Homeland Security release its investigation of the death, saying “the federal government lying about the death of a minor in their custody is unacceptable and requires immediate and further investigations into the personnel involved in these decisions.’’

The day after the story was published, lawyers for the family announced that they were taking down their link to the video investigation and they urged news organizations to remove the video. “Carlos is a beloved child of his family,’’ they wrote. “His life is not just a story or an example of the U.S. government’s abuses.’’

The lawyers said the widespread sharing of the video had deepened the family’s suffering. And they shared a statement from the family: “It’s been really painful for our family to lose Carlos. We thought that not knowing what happened to him in that cell, whether he was all alone when he died, whether it was preventable, that we don’t know if we can hold the people responsible accountable— that that was the worst grief we could have, but having all these people watching him die on the internet is something we couldn’t have imagined in a movie or a nightmare.”

The lawyers acknowledged that “a free press is critical to the functioning of democracy.’’ But they said that everyone involved in circulating the video, themselves included, had “erred in compounding the trauma our government has already inflicted.’’

The finer points of journalism ethics are more oral tradition than clear written guidelines. Over the past several days, I’ve spoken with colleagues at leading news organizations and within the ProPublica newsroom about this case. It is clear there is no consensus on how such issues should be handled.

Editors and reporters at ProPublica spent considerable time before the story appeared weighing how we could limit the pain we might cause the family while also fulfilling our mission to expose abuses of power.

A ProPublica reporter, who speaks Spanish, described the video to Carlos’ father, who lives in Guatemala, and to a close family member, and told them that ProPublica would be publishing it. During a 25-minute phone conversation, the father expressed his hope that the video would bring out the truth about his son’s death. The other relative asked to see the video before we published it and expressed concern about Carlos’ death being broadcast across the internet. We edited the video with that mind, fast-forwarding through the most graphic scenes.

As the family pointed out in its statement, we did not share the video with them in advance. This reflected our practice, embraced by nearly every news organization, that draft stories, which we considered the visual investigation to be, are not provided to outsiders before publication.

There are good reasons for this rule which I agree with. Sharing advance copies of a story with powerful people or government agencies gives them a roadmap for pressuring sources who have agreed to be quoted by name. It can give rise to a “pre-buttal’’ in which sophisticated public figures push out a distorted version of events before a critical story appears.

There is a broad consensus among journalists that one can share some aspects of the reporting with the people they directly concern. Many journalists think it is appropriate to read back quotations to people who have been interviewed for stories. Some refuse to do this because they fear sources might retract or try to soften what was said in earlier conversations.

As editor-in-chief of ProPublica, I come down on the side of allowing reporters to read back quotes and outline relevant portions of stories to experts who might identify factual errors. I did this myself while a reporter at The New York Times, and it saved me more than once from making errors of fact and omission.

“No surprises” — offering subjects of stories a full and fair summary of what’s coming — is a core value of journalism ethics. It allows people we’re writing about a fair chance to explain or put in context their actions. If we can give CEOs a fair summary of what’s coming, we need to do the same for a grieving family.

The statement from Carlos’ family argues that hearing a detailed description of the video was not enough and that they should have been allowed to see it before it was published. From their perspective, words did not convey the experience of seeing it.

I think they have a point. Showing them the footage we intended to use would have given them a chance to truly understand what the world was about to see of Carlos’ final hours. And it would have given us at ProPublica a better opportunity to weigh the competing tensions of privacy and public interest.

It is impossible to say what might have ensued had we done so. Family members could well have asked us to use nothing from the video. Or they might have suggested we delete the painful scenes that make it clear that no one at the Border Patrol station was keeping watch as their child grew desperately ill. What’s unarguable is that we didn’t have that conversation.

Journalists have a duty to weigh the public interest of a story against the pain it might cause a grieving family. We cannot give subjects of stories veto power over what is reported. But in cases like this one, particularly when a child is involved, we need to do everything we can to understand and be sensitive to what is at stake for everyone involved. I regret that we did not do that.

Knowing everything we know now, I still feel that making the video public was the right decision. The chance to see what really happened in that cell, painful as it is, changed the conversation about Carlos and the five other migrants who died in Border Patrol custody in the last year. It galvanized members of Congress and has significantly raised the possibility that there will be a serious investigation. The growing availability of visual and audio evidence is a godsend for investigative journalists, particularly at a time when truth itself seems under assault. But as we at ProPublica work to figure out how to better handle such material, it’s clear that the issues are deeply complex and that we’ve only begun to sort through them.

Update, Dec. 13, 2019: Read the family's statement criticizing our handling of the video, and our editor-in-chief's response.

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