On Monday, August 17, 1992, Toronto Star reporters Kevin Donovan and Philip Mascoll sat at a wooden picnic table on the outdoor patio of a Lick’s restaurant on Kingston Road sipping coffee amid the lunch-time crowd. Each wore a concealed tape recorder attached to his leg, just above the ankle, with masking tape. Across from them sat Harold Lounds, a 49-year-old Ontario liquor licence inspector, who was the target of a “sting” operation engineered by the reporters after they had received a tip about an inspector who took a bribe for helping the tipster obtain a bar licence.
The reporters had last met with Lounds on June 2, when Donovan posed as a former construction worker seeking a liquor licence for a proposed bar on Warden Avenue to be called The Grille House. Mascoll pretended to be a wealthy investor planning to finance the bar and handed the inspector an envelope. (When the reporters later wrote about their meeting with Lounds, they claimed to have put $500 in the envelope, but Lounds denied knowing that when he received the envelope it contained any money.)
At the August rendezvous, Donovan and Mascoll were now prepared to tell Lounds they were reporters, and to offer him the opportunity to defend himself before they printed their story. And Donovan, who knew that Lounds had previously suffered a heart attack, worried about how the man would take the news. So, just before he announced that he had a “little bit of a surprise” for him, he asked: “How are you feeling today? How’s your heart?”
But it was the reporters who were surprised. After Lounds listened to what they had to say, he left the table. Donovan and Mascoll were joined by Metro police officers and officials from the Liquor Licence Board of Ontario. Lounds, it turned out, had been wearing a concealed tape recorder as well. The reporters realized that Lounds probably twigged to them after learning that the site of their proposed bar was going to be a day-care centre.
The reporters were arrested for attempting to bribe a public official, but were later released after an assistant crown attorney decided what Donovan and Mascoll did was no different from what police officers do, and that there was no basis to lay a charge. But since when did journalists obtain the right to act as police officers? The sting itself raises concerns about reporters’ use of deception and the possibility of entrapment. If journalists want a story so badly that they are prepared to lure unsuspecting subjects into situations where they might be tempted to commit a crime, perhaps they should take a harder look at just where the ethical line should be drawn.
In the case of the Stars sting, the liquor inspector was charged with bribery and breach of trust by a public official after police used a search warrant to seize the Stars tapes and photographic evidence. Lounds has since been fired from his job. And even though both Donovan and Mascoll strongly believe that their role as journalists is to simply tell stories, not to do the job of the police, they might have known that once the story was published they would likely be called on to provide evidence. In fact, both reporters have been subpoenaed to testify when the case comes to trial. What actually happened in this particular case is a matter for the courts to decide. Our concern rests with the ethical dimensions alone.
While sting operations aren’t an everyday occurrence in news organizations, they do happen, sometimes o’n a grand scale. When the Chicago SunTimes wanted to expose corrupt public officials in the late 1970s, it went so far as to open a run-down bar, The Mirage (where draft beer cost a quarter, and bar drinks only 50 cents more). The Mirage was staffed with Sun- Times reporters who surreptitiously gathered evidence whenever an inspector solicited them for a bribe to keep quiet about the bar’s substandard fixtures and equipment. By prearrangement with the Illinois Department of Law Enforcement, the reporters promptly reported each violation.
The paper subsequently ran a 25part series that detailed the corruption. It won a number of prizes but was passed over for a Pulitzer because the judges couldn’t agree on the ethics of the paper’s elaborate use of deception. Some critics even argued that an (2 element of entrapment was present; 2 that the Sun- Times had done more than just provide an opportunity for bribes to occur, by actually encouraging the activity it then exposed. However, Pam Zekman, one of the reporters who worked at The Mirage, has been quoted as saying that there was no entrapment involved: “Our rule was that we would never plant the suggestion that a payoff would be made. We would wait until an overture was made by an inspector.”
Aside from the thorny issues of deception and entrapment, the award winning Mirage series highlights another area of concern. Whenever journalists attempt to weigh the benefits of doing this type of story, their judgment could be clouded by potential conflicts of interest. Claiming they are merely looking to produce good for the community, they may lose sight of the fact that significant benefits might accrue to themselves or to the company for which they work journalists stand to win prizes for their stories, and the newspaper itself can enhance its circulation by publishing sensational stories.
The Star’s sting operation was notably different from the Chicago SunTimes’. Reporters of the Sun- Times kept police notified of what they were doing. (Granted, some might argue the reporters had essentially become agents of the police and the police, as society’s enforcers, should be the ones to undertake this type of operation.) But more importantly, the Sun- Times reporters waited for the inspectors to come into The Mirage, while the Star reporters neither prearranged their activities with police nor waited for the inspector to come to them.
According to Joe Hall, Donovan’s and Mascoll’s editor at the time of the sting, the Star couldn’t see any other way to get the story. Hall, who’s now doing a Nieman Fellowship at Harvard University, says that a lot of time was spent thinking about how to get the story without deception. They even ran through other options, such as telling the Liquor Licence Board about the tip they had, but weren’t entirely confident that the board would stop any corruption that was going on, since it already had its own investigators in place. As far as telling the police, Hall says that’s the last thing they would do: “The police would probably tap our phones. Besides, our job is to publish stories, not voluntarily go forward with information to the police.”
After weeks of soul searching that went all the way up to editor John Honderich and publisher and president David Jolley, the Star decided to allow the reporters to go ahead. “It wasn’t a quick snap of the fingers,” says Hall. “We knew we were risking criminal charges against the reporters and the paper. And we have a very clear rule at the Star that we don’t use deception in our stories. Deception is outlawed. Banned. Barred.” Having said that, he clarifies that there are always exceptions to the rule. In his view, this story was important enough to warrant the risks involved.
But it seems odd that a news organization the size of the Star would go to the lengths of engineering a sting against one liquor inspector who, in the final analysis, has very little power. Liquor inspectors in Ontario have no authority to actually approve liquor licences. All they can do is file a report after they have done a final inspection of the premises. The power to approve the licence rests with the board itself. And as for trying to uncover a bigger network of corruption, Kevin Donovan says: “The funny thing is there aren’t that many liquor inspectors. There’s this guy for Scarborough [Lounds] and one for Toronto, and all the rest are on sick leave.” At anyone time there are usually between eight and 12 liquor inspectors covering the Metropolitan Toronto region, and only about 30 inspectors for the entire province of Ontario.
In order to justify a reporter’s use of deception, it seems reasonable to assume that the good to be achieved ought to be weighty enough to justify the level of deception used. For Robert Fulford, the Maclean Hunter Chair of Communications Ethics at Ryerson, it’s a matter of proportion. “The good should be comfortably larger than the lie involved,” says Fulford. He points to restaurant critics who don’t identify themselves as reporters: “It’s an extremely innocent lie on the scale of lies. And since the restaurant column is a good thing to have, it’s worthwhile to tell that lie.” Other instances of telling relatively innocent lies occur in service pieces where reporters pose as ordinary citizens to test out the business practices of everything from auto repair shops to employment agencies. Given that the public benefits from finding out about shady business practices, the good to be gained appears to outweigh the amount of deception used to get these kinds of stories.
After comparing the “serious lie” involved in the Star’s sting operation against the possible good of exposing one liquor inspector who’s suspected of taking bribes, Fulford pronounces: “The lie is large, and the possible good is extremely modest in scale. So I personally would not call that a good ethical judgment.”
Donovan says he is surprised about the criticism he’s received about the sting. “I’m sort of hearing through the grapevine that this wasn’t a good story. That this was a terrible thing to do. But it was a very exciting thing to do. I knew I was doing something that reporters don’t usually do in this country.”
One of his regrets is that the story got relatively little space in the paper from something that was so time consuming. (It occupied a portion of pages Al and A9 of the August 18, 1992 edition of the Star.) The story took so long because it was interrupted by the strike at the Star that lasted almost five weeks, during which time both Donovan and Mascoll were picket captains just across the street from the Liquor Licence Board of Ontario offices. Not wanting to risk running into the inspector, they chose the midnight shift.
In Donovan’s view, journalists need to take a more active role and really dig into their stories. “A lot of people view the role of the press as very passive, and I think that’s crazy. As a reporter, if you’re not being told that you’re in the wrong place or if people aren’t angry at you, then you’re not doing your job properly.”
In terms of deciding just where the journalistic line should be drawn when reporters dig into stories, Donovan says he doesn’t believe in too many lines. However, he concedes that there are certain things he wouldn’t do. He tells of once being offered a peach pie and a bottle of whiskey while working on a story about a con man. ‘~nd I absolutely refused. So that’s my line. Also, I don’t think reporters should lie. But I guess I lied to the liquor inspector, didn’t I?”
Many journalists would probably agree with Donovan that their role is to dig deep for information. But it’s difficult to see how reporters who become major participants in the story can maintain their objectivity. It’s also difficult to determine at what point things like sting operations move into the area of entrapment.
The Star’s Hall says that he and his colleagues were well aware of the danger of entrapment, and bent over backwards to avoid it. “We spent hours and hours from the very first day talking about what we should or should not say. What would be entrapment, and what wouldn’t be.” The principle behind entrapment is that an individual wouldn’t have committed a particular criminal act ifhe had not been encouraged to do so. Merely giving in to temptation and acting from natural tendencies is not seen as entrapment.
But even when entrapment is not an issue, there still remains the question of whether reporters who provide an opportunity for someone to give in to temptation might not be instrumental in aiding that person to commit an offence, possibly even for the first time. Donovan’s partner in the sting, Philip Mascoll, doesn’t see this as an ethical dilemma for journalists. Using an analogy to make his point, Mascoll says: “If a boss puts his hand on his secretary’s breast, he’s as guilty of sexual assault as the man who does it 15 times. It’s his choice. If he’s stupid enough to give into his impulses, even if it’s once, he’s in trouble. If that boss does it 15 times and nobody says anything, shouldn’t journalists then go in and let him do it to them and write a story about it? And if you catch him on the first bounce, thank God.”
For Mascoll, it boils down to whether a story is in the public good. “The public needs to be informed about what is happening around them and we, as journalists, have elected to do that.” Clearly, it’s in the public interest for the press to act as a watchdog on the activities of government officials. But what is not so clear is whether it’s in the public interest for journalists to conduct undercover operations to gather criminal evidence against these public officials.
One of the concerns that Metro Toronto police detective Dave Arbuckle has with journalists conducting stings is that they’re amateur sleuths at best. Arbuckle, who was one of the arresting officers in the sting, refuses to comment on the case. However, he says that one of his concerns with journalists taking it upon themselves to conduct stings is that there’s no way of knowing that they’ll necessarily follow the same procedures police do in these types of operations.
Dr. Errol Aspevig expands on Arbuckle’s concern. Aspevig, who taught a philosophy course in media ethics to Ryerson journalism students up until his recent appointment as Ryerson’s Dean of Arts, thinks that journalists, as “fumbling amateurs,” might even create a situation where there is no usable evidence against someone. “What they do is deal with this problem in the court of public opinion, where the checks aren’t very good, and the rules of evidence aren’t very strict. Whenever you’ve got amateurs playing at police and carrying out the trial in the press instead of the courtroom, you’re in danger of causing an enormous amount of harm to the person being convicted.”
In order to make good ethical choices, journalists must be willing to stand back from the story and impartially weigh all the consequences of their actions. This is no small task, given the fact that journalists thrive in this business by their ability to get a scoop. So it’s easy to understand why some of them might refuse to forgo the thrill of the chase, especially when they’re on the trail of what they see as a great story.
But in refusing to move beyond their self-interest in getting a story, journalists risk becoming moral laws unto themselves. They see the story becoming more important than the people involved. And they sometimes forget that stories have real consequences for real people.